1.

Salient features of - 15
1:1 Basic features
1.1.1. Constitution of U.K.,
1.1.2. Constitution of USA, and
1.1:3. Constitution of India
1.2 Doctrine of Separation of Power under the Constitution of-
1.2:1 U.K
1.2:2 USA and
1.2:3 India
2. Comparative study on the
20
2.1. Methods of amendment under the Constitution of –
2.1.1. U.K.,
2:1 2. USA and
2:1 3. India.
2.2. Composition and jurisdiction of
2.2.1. USA Judicial System
2.2.2. Indian Judicial System
2.3. Provisions of trade, commerce and intercourse under the
2.3.1. Constitution of India and
2.3.2. Constitution of USA
3. Rule of Law 15
3:1 Meaning
3:2 Exception to the rule of law
3:3 Rule of law under the Constitution of U.K., USA and India
4. Natural Justice 15
4:1 Principles
4:2 Applicability of natural justice principles under the Constitution of
4.2.1. U.K.
4.2.2. USA and
4.2.3. India
5. Doctrine of Judicial Review in
15
7:1. U.K.,
7:2. USA and
7:3. India

Prescribed Books
1. Dr. D. D. Basu, Comparative Constitutional Law, Wadhwa & Co. Ltd.
2. Vishnoo Bhagwan and Vidya Bhusan, World Constitution
3. Anup Chand Kapoor & K.K. Mishra, Select Constitution, S. Chand &Co.
Ltd.

CONTENTS
Chapter – I : Introduction 3

1. Equality and Its Bases.

2. Indian Case for Correcting Injustices.

3. Competing Claims.

4. American Paradigm.

5. Scheme of Study.

Chapter- II : Equality Justice and Affirmative Action : 13

Theoretical Considerations.

1. Nature of Equality and Justice.

2. Theories of Equality.

2.1.Liberal Theory of Equality : John Rawls.

2.2.Libertarian Perspective.

2.3.Marxian Radicalism.

2.4.Various Strands of Socialist Thinkers.

3. Common Grounds of Distributive Justice.

4. Affirmative Action Programmes : Jurisprudential Basis

4.1.Merit Argument.

4.2.Rights Argument.

4.3.Efficiency Argument.

4.4.Balkanisation Argument.
Chapter- III :

Indian Panorama of Equality and Justice Ancient and Modern : 36

1. Context of Indian Socio-Political Governance.

2. Varna System : The Classificatory Principle.

3. Deterioration of the Varna System into Rigid Caste System

4. Post Independent India : A New beginning.

4.1.Reservations in Legislative Bodies.

4.2.Reservations in Jobs (Government Services)

4.3.Reservations in Educational Institutions.

4.4.Preferences in Resource Distribution.

4.5.Action Plans and Amelioration Programmes.

5. General Observations.

Chapter- IV : Equality and Affirmative Action in U.S.A. 65

1. A Peep in to the History of Slave System.

2. Towards Equality.

3. Death of “Separate but Equal” Doctrine and Protective discrimination.

4. Competing Arguments.

Chapter- V : Evaluations and Conclusions. 79

1. Social Pathology : Caste and Race.

2. Benign Discrimination on Provisions.

3. Group Rights vs Individual Rights.

4. Policy vs Rights Approach.

5. Concluding Observations.

List of Cases. 91

Bibliography 93

List of Articles from Journals and Periodicals 95

United States: three branches

In the United States Constitution, Article 1 Section I gives Congress only those
"legislative powers herein granted" and proceeds to list those permissible actions in
Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The
vesting clause in Article II places no limits on the Executive branch, simply stating that,
"The Executive Power shall be vested in a President of the United States of America." [9]
The Supreme Court holds "The judicial Power" according to Article III, and it established
the implication of Judicial review in Marbury vs Madison.[10] The federal government
refers to the branches as "branches of government", while some systems use
"government" to describe the executive. The Executive branch has attempted to claim
power arguing for separation of powers to include being the Commander in Chief of a
standing army since the Civil war, executive orders, emergency powers and security
classifications since WWII, national security, signing statements, and the scope of the
unitary executive.

Checks and balances

To prevent one branch from becoming supreme, protect the "opulent minority" from the
majority, and to induce the branches to cooperate, government systems that employ a
separation of powers need a way to balance each of the branches. Typically this was
accomplished through a system of "checks and balances", the origin of which, like
separation of powers itself, is specifically credited to Montesquieu. Checks and
balances allow for a system based regulation that allows one branch to limit another,
such as the power of Congress to alter the composition and jurisdiction of the federal
courts

Legislative (Congress)

 Passes bills; has broad taxing and spending power; controls the federal budget;
has power to borrow money on the credit of the United States (may be vetoed by
President, but vetoes may be overridden with a two-thirds vote of both houses)
 Has sole power to declare war.
 Oversees, investigates, and makes the rules for the government and its officers.
 Defines by law the jurisdiction of the federal judiciary in cases not specified by
the Constitution
 Ratification of treaties signed by the President and gives advice and consent to
presidential appointments to the federal judiciary, federal executive departments,
and other posts (Senate only)
  Has sole power of impeachment (House of Representatives) and trial of
impeachments (Senate); can remove federal executive and judicial officers from
office for high crimes and misdemeanors

Executive (President)

 Has all the Executive Power

 Is the commander-in-chief of the armed forces
 Preserves, protects and defends the Constitution.
 Faithfully executes the laws of the Country.
 Executes the instructions of Congress.
 May veto bills passed by Congress (but the veto may be overridden by a two-
thirds majority of both houses)
 Executes the spending authorized by Congress.
 Executes the instructions of Congress when it declares war or makes rules for
the military.
 Declares states of emergency and publishes regulations and executive orders.
 Makes executive agreements (does not require ratification) and signs treaties
(ratification requiring by two-thirds of the Senate)
 Makes appointments to the federal judiciary, federal executive departments, and
other posts with the advice and consent of the Senate. Has power to make
temporary appointment during the recess of the Senate
 Has the power to Grant "Reprieves and Pardons for Offenses against the United
States, except in Cases of Impeachment."

Judicial (Supreme Court)

 Determines which laws Congress intended to apply to any given case

 Exercises judicial review, reviewing the constitutionality of laws
 Determines how Congress meant the law to apply to disputes
 Determines how a law acts to determine the disposition of prisoners
 Determines how a law acts to compel testimony and the production of evidence
 Determines how laws should be interpreted to assure uniform policies in a top-
down fashion via the appeals process, but gives discretion in individual cases to
 low-level judges. (The amount of discretion depends upon the standard of
review, determined by the type of case in question.)
 Federal judges serve for life

JUDICIAL FEDERALISM IN INDIA

INTRODUCTION

India i.e. Bharat shall be a Union of States says Art. 1 of the Constitution of India.

It is also stipulated in the Constitution that India i.e. Bharat shall be a Union of States
and the territories and such other territories as may be acquired. The constitution thus,
postulates India as a Union of States and consequently, the existence of the federal
structure of governance for this Union of States becomes a basic structure of the
Constitution of India. All the provisions made in this Constitution are, therefore, liable to
be so interpreted as will protect, if not enhance, and certainly not destroy the basic
structure namely federal structure of the Union of India.

In this reference, adopting the test of Prof. Wheare wherein he says that “any definition
of federal government which failed to include the United States would be thereby
condemned as unreal.”

Therefore, we need to see the condition prevailing in the U.S., the basic principles of
federalism, and then in its light analyse the provisions of our Constitution.

In any country, the Judiciary plays the important role of interpreting and applying the law
and adjudicating upon controversies between one citizen and another citizen and
between a citizen and a state. In a country with a written Constitution, Courts have an
additional function of safeguarding the Constitution by interpreting and applying its
provisions and keeping all authorities within the constitutional framework.

Chapter IV of the Constitution of India speaks of Union Judiciary. Since Judiciary is one
of the fundamental organs of the government, therefore its structure, working,
procedures etc. are also fundamental to the working of the government. And if the
government type is ‘federal’, then those federal features must also be reflected in its
judicial set-up.
So, from here we move towards analyzing as to whether the different provisions of our
Constitution have provided for the similar federal characteristics for the judiciary and
takes us to enquire whether there exists ‘judicial federalism in India’.

THE CONCEPT OF FEDERALISM

‘Federalism’ is one of those good echo words that evoke a positive response toward
many concepts as democracy, progress, constitution, etc. The term has been seen to be
applied to many successful combinations of unity with diversity, pluralism and
cooperation within and among nations.

When we elaborate upon the essential feature of federalism that the specialists in the
field offer, it is noted that they all seem to contain the following basis points:

First, in a federation the political authority is territorially divided between two

autonomous sets of separate jurisdictions, one national and other provincial, which both
operate directly from the people. Second, the existence of a single, indivisible but yet
composite federal nation is simultaneously asserted.

In this regard Prof. Wheare made an important observation that for the existence of a
federal principle, it is important that the power of governance is divided between co-
ordinate and independent authorities.

Further, an examination of the U. S. Constitution shows that the principle of organization

upon which it is based, (the federal principle) is that the field of government is divided
between a general authority and regional authorities which are not subordinate to one
another.

It is also said that for the in order to be called ‘federal’, it is not necessary that the
Constitution should adopt the federal principle completely. It is enough if the federal
principle is the predominant principle in the Constitution.

In India, we say that the federal principle is dominant in our Constitution.

Keeping this framework of ‘federalism’ in mind, we next move to state that there are
three basic organs of governance, they being: Executive, Legislature and Judiciary.

Now when we say that a country has federal features of governance, it must be
understood that the federal principle is present in all these three organs of the
government. If it be not so then in actual practice the principle of federalism will be
watered down. This is because if the component units themselves do not follow the
mandates of the Constitution, then the entire federal structure would lose its significance
or rather would not even qualify to be called as federal in nature.

EVOLVING A TEST FOR JUDICIAL FEDERALISM

a. Ingredients of Judicial Federalism

In a country like India, where there are a number of States, and where the
Constitution contemplates that it shall be ‘Union of States’, to prove that there is
federalism and that too in the judicial set up, then first of all it has to be established
that there is federalism in the entire governmental set up. That we say since there
has to be coherence between the different organs of the government, and out of
whose practices the federal set up of the government can be proved. This is
because, federal government or federal Constitution and federal judiciary (or for that
matters and organ of the government, be it executive or legislature), both are
corresponding terms. One follows the other. If there is no federal government, then
there cannot be a successful federal judicial set up since that federal set up will be at
some places be disturbed or its working be hampered by the ‘non federal’
government and vice- versa.

Secondly, if we see in the Indian frame, then federation has been established in the
legislative domain by bringing in division of power first, by creating legislatures at
two levels, one at the centre and another at the provincial (State) level, and the by
dividing their areas of work by creating different Lists, wherein subjects upon which
the different legislatures can exercise their control are fixed. Proper itemization ahs
been done in the ‘law making’ domain. If therefore, we in India try to locate
federalism in the Indian Judiciary, then we need to see, if not the same then similar
demarcation of power in the judicial arena too. That can be seen by looking at the
structure of the judiciary, its organization, its working, etc.

b. Efficacy factor

In this, we try to locate as to what is the need of a federal judicial set- up, how it can
be achieved, how should the judiciary be organized in order to achieve the goal of a
federal judiciary, whether ‘federalism’ in judiciary be established by keeping the
same parameters to judge the judicial system as we have for analyzing the federal
character of the legislature or executive, or whether there are need to be seen some
more factors for the purpose, etc. There also need to be a question that upto what
levels of the judicial hierarchy can the ‘federalism’ concept be stretched to and be
stressed upon, is it upto the basic line of demarcation only or it extends also to the
lower levels of judicial hierarchy, and then to see that what amount of efficiency can
be maintained by allowing a very deep rooted federal set-up.

c. Control factor

Since in India, we have a hierarchy of courts at the State level and the Supreme
Court at the centre, therefore, herein we in the ‘control factor’, we need to see the
relationship of these courts between and within themselves. There need to be
analysed that what is the amount of control the Supreme Court (Union Judiciary)
exercises over the High Courts and its subordinate courts (High Courts in the
States), and further what is the amount of control that the High Courts can exercise
over the courts ‘subordinate’ to it, since there has to be a check and control on that
too, to maintain a proper federal set up. The subordinacy of courts is itself a term
that runs in contradiction with the federal principle, since there cannot be actually
courts that are subordinate to or before another courts, or even before any other
outside agency.

d. Independence factor

This factor is the most determining factor for the purposes of judging the claim o a
judiciary as being federal. This is the most highly held concept that has been
recognized since the very idea of justice delivery system has come to existence,
since it is always felt that there cannot be justice without the justice delivering body
being a free and a fair body.

Since in the project, we talk of judicial federalism, therefore the independence that is
being refereed to here, is the independence within the internal structure, and not in
reference of the other outside agencies or any other controlling or governing body.

The courts at different levels should work independent of the other courts above
them in the judicial hierarchy, otherwise justice cannot be done in a true sense. If
there are mechanisms to guide the decisions and judgments of the courts or the
mechanism of working of the courts or control over the officers of the courts, then
the courts cannot exercise their discretion to the matters, or there might come in an
element of prejudice or bias which would affect the entire concept of federalism by
snatching the freedom of the different units of the federation called judiciary.

e. Superintendence factor

Since in India follows a hierarchy of courts, this feature leads to at times the courts in
the upper hierarchy to exercise some sort of superintendence over the courts placed
in the lower order of the hierarchy. There might be reasons for the same, but a
question still arises as to whether this feature of superintendence undermines the
principle of federalism because federalism connotes the creation of independent
units. If the different units are superceded by the others, then this will be a severe
stroke towards bringing down the spirit of federalism.
To analyse this factor in the Indian reference, it needs to be highlighted again that
since India is ‘Union’ of States, and therefore to maintain the Union and keep it
intact, can the slogan of ‘no superintendence’ be followed in a very strict sense?

It is probably not possible in the strictest of the senses, since again it might at some
time lead to ‘independent’ units gaining more independence than what is required or
using the independence that they enjoy towards adverse causes.

f. Supremacy versus Superiority factor

In India the Supreme Court is known as the Apex Court. This can be called as
establishing the supremacy of the Supreme Court. This point is further strengthened
by the fact that its decisions are regarded as ‘laws’ and carry a mandate with them to
be followed by all the other judicial authorities in the country. How far does this
supremacy have a role to play in judging the characteristics of the judiciary and how
far can it be allowed in a federal judiciary is a question which can be answered
seeing to the facts and circumstances.

The superiority factor basically refers to one court being more competent to the other
and also to the feature that if there is any decision by a court which is not proper,
then there is one authority above it which can correct the said infirmity. This can be
said to include features as the appellate provisions, etc.

To ascribe federal character to the judiciary, one needs to look into the said factors,
since, they determine the working of the system.

One also needs to see that does the supremacy clause and the superiority clause
conflict with each other or are they synonymous. Because, it can be said that the
presence of a supreme authority is a must, whose say is a must to be followed,
keeping the independence of the discrete units intact, otherwise it might lead to the
disintegration of the entire system. It will be a body that will act as a binding force.

The superiority factor might at times lead to the dilution of the federalism principle, if
its working it not controlled to maintain the independence of the component units.

g. Coordination factor
 This feature is that binding force which is must to maintain the ‘union’. Unless the
discrete units maintain a proper coordination among one another, there cannot be
materialized the idea of a federation. To prevent the system from withering down to
the internal and external forces, there is needed a mechanism that allows for full
independence, but not at the cost of the federation, but protecting and securing it to
keep it as ‘one’. This is needed to ensure the flow of the stream of justice.

ORGANISATION OF JUDICIARY

The organization of courts, i.e. the judiciary is the basic criterion for determining the
federal character of the judiciary. This being so, since, it is starting with the structure
only that we can proceed to look further into its working and mechanisms, which form
the functional aspect of the judicial set-up. Both the structural and the functional parts,
and their coordination with each other decide as to whether what type of judiciary it is,
i.e. federal, or unified or any else.

The Constitution of India provides for two sets of courts, one at the centre and other in
the states. Chapter IV of Part V and Chapter V of Part VI speak of Union Judiciary and
High Courts in states respectively. There are separate provisions for both which
prescribe for their working which means that both derive their powers from the
Constitution.

United States Judicial Set-up

To compare this set- up of courts in India with that of the U. S., where there exists a
complete judicial hierarchy on both the federal and the state levels. In the federal court
structure there are, in ascending order, district courts, circuit courts of appeal, and at the
top of the federal judicial pyramid the Supreme Court. In each state another judicial
pyramid of state courts culminates with the state supreme court. The two systems
however, are not “federally fully separate”; not only is the federal Supreme Court the
highest court of appeal from both the networks but the two systems actually interlock by
a degree of concurrent jurisdiction, shared by both the federal and the state courts.
There are separate matters for the jurisdiction of both the state and the federal courts.
Some matters are under the exclusive jurisdiction of the federal courts, such as crimes
and offences against the United States; prize, patent, copyright, and some bankruptcy
cases; civil cases of admiralty and time jurisdiction; cases to which a state is a party;
and cases involving foreign ambassadors.

Although the federal and states court systems are linked to the extent that in certain
cases the U. S. Supreme Court has the power to review a decision rendered by the
highest court of the state, state courts are generally independent of the federal courts.
Also a federal court ordinarily does not interfere e.g. by habeas with the administration
of the state law by a state court unless fundamental rights guaranteed by the federal
Constitution are invaded, or when the enforcement of state law appears otherwise
repugnant to the Constitution, laws or treaties of the U. S. Thus the orderly
administration of justice in a state court is not to be interfered with, except in rare cases
when exceptional circumstances exist.

With this backdrop of judiciary present in the U. S., for which the concept of judicial
federalism is said to be true, we shall see to the various provisions of the Indian
Constitution, which spell out the structure, powers and functions for the judiciary in
India.

Chapter IV of Part V has the provisions for Union Judiciary.

Art. 124 provides for the establishment of the Supreme Court, Art. 125 to 128 have
provisions regarding the judges of the Supreme Court, Art. 129 declares the Supreme
Court as a court of record, Art 130 to 134 & Art. 138 spell out the jurisdiction of the
Supreme Court, Art. 134A to 136 have provisions for appeal to the Supreme Court, Art.
139 confers power upon the Supreme Court to issue certain types of writs, Art. 139A
further gives the power to the Supreme Court to transfer certain pending cases to itself
and Art. 141 makes any law made by the Supreme Court to be binding on all courts
within the territory of India, the Supreme Court has original jurisdiction in matters of
fundamental rights of the citizens under Art. 32; this article being in Part III is itself a
fundamental right.
Chapter V of Part VI has provisions for High Courts in states.

Art. 214 & 216 have provisions for the establishment and constitution of High Courts,
Art. 215 makes High Courts also courts of record (similar to Supreme Court), Art 217 to
224A has provisions regarding judges of the Supreme Court ( some of them being
similar to those for the Supreme Court judges), Art. 225 & 226 are regarding jurisdiction
of the High Courts, Art. 227 spells out the superintendence of the High Courts over the
other courts falling in its territorial jurisdiction and Art. 228 provides for the transfer of
cases by the High Courts from the courts subordinate to it, Art. 235 provides for High
Courts’ control over the courts subordinate to it.

Based on the above structure of judiciary in India and viewing it in the light of the same
in the U. S., we proceed to examine that whether there exists ‘judicial federalism’ in
India or not.

NO JUDICIAL FEDERALISM IN INDIA

It has always been said about Indian Judiciary that it is a unified one with the Supreme
Court at its apex and he High Courts below it. Seeing the various provisions of the
Constitution, it can be said that the Supreme Court enjoys the top most position in the
judicial hierarchy of the country. It is the supreme interpreter of the Constitution and the
guardian of people’s fundamental rights. It is the ultimate appeal in all criminal and civil
matters and the final interpreter of the law of the land, and thus helps in maintaining a
uniformity of law throughout the country.

Firstly, what is required for a federation is that there should be a division of power
among the different co-ordinate and independent authorities/component units of a
federation. When we analyse federalism in judiciary, then the same division of power
should also be reflected in the judicial set-up or between the federal and the provincial
courts. It should be demarcation in the fields of working of the federal and
provincial/state courts.

Applying the principle of federation as given by K.C. Wheare for federal governments:
“The division can be made either by marking off the powers of the general government
and limiting it to them, and then saying that, with this exception, the regional
constitutions are to go on as before and that the powers of the regional governments
are limited to what is left; or the division can be made by marking off and limiting the
powers of both general and regional governments and thus creating new constitutions
for all of them.” Now if the same ‘federalism’ principle is to be applied in reference to
judiciary, and then comparing it with that of the Indian system, then it can be said very
conveniently, since it seems very apparent then that there exists no judicial federalism
in India.

This being so, since, in India there is no division of powers between the general and
provincial courts. There is no itemization done with regards to their area of working and
there seems to be no exclusiveness in their working too, as there is there is no
conclusive bar on any suit from reaching the Supreme Court. The entire system seems
to be like ‘one’. There courts run in one vertical hierarchy starting from the lower courts
and finally terminating in the Supreme Court. Comparing with the condition prevalent in
the U. S. in this regard, we have seen that both the federal and the state courts have
their own respective field of jurisdiction, and only some matters having concurrence
between the both. With this reference, it becomes clear that the situation in India
doesn’t match with that of the U. S., wherein our system fails to fulfill the basic condition
required for ‘federalism’.

Constitutional Provisions

Starting with the big gun first, and the article that plays the most determining role
towards this. It is Art. 141 of the Indian Constitution. This article enacts that the law
declared by the Supreme Court shall be binding on ‘all courts’ in the territory of India.
With this article gets attached a value of superiority with the Supreme Court that its say
has to be followed as a mandate by all the other courts of the country.

Coming then to the jurisdiction of the court, where Supreme Court has the exclusive
original jurisdiction as laid in Art. 131.

Regarding appellate jurisdiction, the Supreme Court has appellate jurisdiction as

provided by Art. 132 to 134A & Art. 136.
“Appellate jurisdiction is the jurisdiction of a superior court to review the final judgment,
order, or decree of an inferior court on the record made in the inferior tribunal & to
affirm, reverse, dismiss, or modify that decision.”

the word appellate signifies the superiority of the Supreme Court and the degree of
allowance of such appellate jurisdiction also further determined the features of a
judiciary. Since in India, the freedom to cases is such that every case is capable of
reaching the Supreme Court, the ‘federalism’ principle fades away.

The provisions laying appellate jurisdiction of the Supreme Court are too wide and give
a large amount of powers to the Supreme Court in matters of appeal. Any kind of matter
can reach to the Supreme Court in appeal via these provisions. Art. 132(1), any appeal
can lie to the Supreme Court from any judgment, decree or final order, whether civil,
criminal or other proceeding of the High Court if it certifies that the case involves a
substantial question of law as to the interpretation of the Constitution.

Thus a large amount of power has been conferred on the Supreme Court in
constitutional matters. This seems to be ascribing unitary characters to the judiciary
especially when both High Courts and the Supreme Court have been established by the
Constitution, i.e. both are constitutional courts but the power has been given to only one
of them.

Then, enlargement of the jurisdiction of the Supreme Court by a law made by the
Parliament is provided vide Art. 138, whereas no such similar provision is kept in favour
of the High Courts.

Further, power is also conferred on the Supreme Court by Art. 139A of the Constitution
to transfer certain cases from the High Courts to itself. This obliterates the principle of
federalism as it implicitly makes or shows the Supreme Court as being more competent
than the High Courts.

And finally, Art. 144 which provides that all authorities civil and judicial in the territory of
India shall act in the aid of the Supreme Court.
This entire constitutional scheme shows that more importance need be given to the
Supreme Court, which is the highest court of the land. The entire judicial set- up is
seems to be biased towards the one Supreme Court.

Practices of the Supreme Court

Not only the constitutional provisions, but also the decisions given by the Supreme
Court and the practices followed by it show that the judiciary in India is centrally
organized and there exists no characteristics of federalism in it.

This Court considered the scope and amplitude of plenary power under Art. 136 of the
Constitution in Durga Shankar Mehta v. Thakur Raghuraj Singh (1955), Mukherjee, J.
speaking for the Court observed

"The powers given by Art. 136 of the Constitution however are in the nature of special or
residuary powers which are exercisable outside the purview of ordinary law, in cases
where the needs of justice demand interference by the Supreme Court of the land. The
article itself is worded in the widest terms possible. It vests in the Supreme Court a
plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of
special leave, against any kind of judgment or order made by a Court or Tribunal in any
cause or matter and the powers could be exercised in spite of the specific provisions for
appeal contained in the Constitution or other laws. The Constitution for the best of
reasons did not choose to fetter or circumscribe the powers exercisable under this
article in any way."

This was with regard to the appellate jurisdiction of the Supreme Court wherein
unrestricted powers have been read for it under Art. 136.

Also, seeing to the original jurisdiction of the court, e.g. Art. 32 of the Constitution, which
provides for the aggrieved parties to invoke the jurisdiction of the Supreme Court in
case of breach of fundamental rights, is itself a fundamental right. Though a similar and
a wider provision to protect the fundamental rights has been made vide Art. 226 to take
recourse under the High Courts, but still the protection given by Art. 32 is accorded
more importance. The significance of this right had been assessed in the case of Prem
Chand v. Excise Commissioner, U. P. 1 wherein Gajendragadkar, J. held:

“The fundamental right to move this court( Supreme Court) can be appropriately
described as the cornerstone of the democratic edifice raised by the Constitution. That
is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself
‘as the protector and guarantor of fundamental rights’ and should declare that “it cannot,
consistently with the responsibility laid down upon it, refuse to entertain applications
seeking protection against infringements of such rights( vide Romesh Thappar v. State
of Madras)2. In discharging the duties assigned to it, this court has to play the role of a
‘sentinel on the qui vive’ (vide State of Madras v. V. G. Row)3, and it must regard it as its
solemn duty to protect the said fundamental rights ‘zealously and vigilantly’”.

There have been decisions which even disregard the alternative remedy that is present
in the case of fundamental rights to a person before coming to the Supreme Court, that
they can get their rights enforced in the High Courts.

In the case of K. K. Kochunni v. State of Madras4 it was held that the right to move the
Supreme Court was an absolute right and that the existence of alternative remedies
was irrelevant.

This same principle was reiterated in the case of Kharak Singh v. State of U. P.5 in which
the court held that:

“The fact that an act by the state executive or by a state functionary acting under a
pretended authority gives rise to an action at common law or even under a statute and
that the injured citizen or person may have redress in the ordinary courts is wholly
immaterial and irrelevant for considering whether such action is an invasion of a
fundamental right. It is wholly erroneous to assume that before the jurisdiction of the

1
AIR 1963 SC 996, 999
2
AIR 1950 SC 124, 126
3
AIR 1952 SC 196, 199
4
AIR 1959 SC 725
5
AIR 1963 SC 898
Supreme Court under Art. 32 could be invoked the appellant must either establish that
he has no other remedy adequate or otherwise or that he has exhausted such remedies
as the law affords and yet not obtained proper redress, for when once it is proved to the
satisfaction of the Supreme Court that by State action the fundamental right of a
petitioner under Art. 32 has been infringed, it is not only the right but also the duty of the
Supreme Court to afford relief to him by passing appropriate orders in that behalf.”

It was also held in the case of Romesh Thappar v. State of Madras that there is no
concurrence of jurisdiction under Art. 32 with that under Art. 226.

All the above decisions do not allow the model of a judiciary with federal features to
come true.

Not only this, there have been decisions of the Supreme Court which have tried to usurp
the power of the High courts under Art. 226. These decisions are not regarding the any
appellate jurisdiction but the Supreme Court has attempted to control the procedures
and practices of the High Courts. Such decisions can be blow on the federal characters
of any judiciary, since one constitutional court cannot limit the power of another
constitutional court.

In Titaghpur PaperMills Co. Ltd. v. State of Orissa6, the Supreme Court relied on old
English decisions, and a decision of the Privy Council in Raleigh Investment Co. Ltd. v.
Governor- General in Council7 to conclude that, the Sales Tax Act was a complete code
providing for appeals, and referring to an English decision of 1859, held as follows:

“It is now well recognised that where a right or liability is created by a statute which
gives a special remedy for enforcing it, the remedy provided by that statute only must be
availed of.”

This principle justifies the High Court in not entertaining a writ petition in a tax matter.

6
AIR 1983 SC 603
7
AIR 1947 PC 78
This approach shows total indifference to the very object of Art. 226, which was to give
citizens a quick and efficacious remedy. The Supreme Courts reliance on judgments
going back to the 19th century for denying a constitutional remedy is untenable, as none
of these judgments had to take into account a constitutional provision such as Art 226,
which overrides all statutory limitations.

The Supreme Court has also strongly deprecated the practice of the High courts in
granting interim relief to the applicants in tax matters, even in cases where the interests
of the revenue were fully protected by bank guarantee. The Court, in a Special Leave
Petition8, reversed the an order of a single judge, confirmed with certain modifications in
appeal, under which a tax demand was stayed; the interests of the Revenue had been
fully safeguarded by ensuring that the assessee furnished a bank guarantee for the full
amount in dispute. The Court did not consider whether the assessee had or had not
made out a prima facie case, but merely geld that in revenue matters the balance of
convenience was always in favour of the State.

This judgment has destroyed the valuable power of the High Court to grant interim relief
in matters relating to taxation.

As a result of such decisions, the writs of prohibition and certiorari have, at least in
matters relating to taxation, been virtually, been abrogated.

Also, the entire set up suffers blows even from one decision of the Supreme Court. The
decision of the Supreme Court in the case of Delhi Judicial Service Association, Tis
Hazari Court v. State of Gujarat9 is one wherein the Court said that the Supreme Court
has power of judicial superintendence and control overall the Courts and Tribunals
functioning in the entire territory of the country, it has a corresponding duty to protect
and safeguard the interest of inferior Courts to ensure the flow of the stream of justice in
the Courts without any interference or attack from any quarter. What the Court went
onto saying regarding the ‘superintendence’ is nowhere reflected in the Constitutional
provisions, and therefore cannot be said to have been intended or contemplated by the
Constitution framers.
8
Assistant Collector v. Dunlop (India) Ltd., AIR 1985 SC 330
9
AIR 1991 SC 2179
Such decisions bring down the principle of federalism and tend to ascribe unitary
characters to the Indian Judiciary.
4. Political Fragmentation in Practice

4.1 The U.S. Judiciary

Nowhere does the U.S. Constitution state that the judiciary shall be the guardian of the
constitution to ensure that the acts of other branches are in constitutional conformity.
Supreme Court Justice John Marshall asserted the Court’s powers of judicial review in
the landmark case Marbury v. Madison in 1803, and the other branches of government
allowed this statement to stand. The irony of this case is that the Court, composed of
Federalist appointees, was at the time in a strategically weak position and refrained
from exercising judicial review against the Jefferson administration. Thomas Jefferson’s
Democratic-Republicans, who had won the presidency and a decisive legislative
majority from John Adams’ Federalists, were angry that before leaving office, the
Federalists had passed “midnight” legislation creating several new federal judgeships
and other judicial positions, which they assigned to their partisans. Once in office, the
Jeffersonians repealed the legislation creating the judgeships and refused to deliver five
of the new judicial commissions that Adams had signed before leaving the White House.

Marbury, one of the Federalist appointees whose commission Jefferson blocked, sued
the new government for not delivering the judicial commissions that Adams had
authorized. The Democratic-Republicans then repealed the Judiciary Act that had
added the federal judgeships. Marshall was astute enough to know that Jefferson and
his Congressional majority could not only draft new legislation, but he knew that
Jefferson could ignore a court order with impunity. Marshall’s ruling on Marbury v.
Madison was profoundly political: recognizing his weak bargaining position, he ruled
that, while the Supreme Court had the right to review the constitutionality of legislative
acts, the repeal of the Federalists’ Judiciary Act was constitutional. Marshal established
the principle and precedent of judicial review by striking down part of a congressional
statute, while not taking the risk of having a court order be ignored by the president.
(Clinton 1994, Knight and Epstein 1996; Chavez, Ferejohn, and Weingast 2004).

The Jeffersonians allowed Marshall’s bold statement about the Court’s constitutional
prerogatives to stand, because their concern was not with the principle of judicial review
but how it might be used against them. As long as Marshall recognized the strategic
reality that a united executive and legislature could withstand judicial encroachment, no
further measures were required. Marshall’s bold proclamation about judicial review
notwithstanding, the Court did not rule unconstitutional acts of the other branches until
the Dred Scott decision of 1857 when Congress was deeply divided over slavery and
secession.

Chavez, Ferejohn, and Weingast (2004) find, in fact, that the pattern of judicial activism
and quiescence follows predictably from the degree of fragmentation or cohesion in the
other branches of government. When a legislative majority stands ready to work with a
president, attempts by the court to rule against legislation or executive orders would be
met with new legislation and possibly worse—attempts to impeach particular justices or
assaults on judicial autonomy. They identify some periods of relatively weak courts on
account of legislative-executive cohesion, but these periods tend to be short and rare: a
few years after the 1800 election, a few years after the Jackson election, about six
years after the Civil War, and the early New Deal. Franklin Roosevelt had a sufficiently
strong coalition to eventually shift the ideology of the Court, although his more blatant
attempt to “pack” the Supreme Court with sympathetic justices failed. As de Figueredo
and Tiller (1998) have pointed out, political alignment of the House, Senate, and
President makes for weak courts. Much of the tension between the judiciary and other
branches of government occurs when appointees of a previous era confront a new
configuration in the political branches (Dahl 1957). Courts reduce their activism when
faced with unified opposition from the other branches, and even more when
appointments begin to bring the judiciary in line with the elected branches.

4.2. Presidential Systems Outside the U.S.

The argument about the effects of political fragmentation on judicial powers fits the U.S.
case particularly well, but it also characterizes some other presidential systems. The
heyday of Argentina’s high court was between 1862 and Juan Peron’s presidency in
1946. Different parties controlled the presidency and legislature, and an internally
heterogeneous majority party governed the legislature itself. Presidents were unable to
pack the courts or purge uncooperative justices, and respected the constitutional
provision that granted judges life tenure during good conduct (Chavez, Ferejohn, and
Weingast 2004: 19). During this period the Court overruled both the legislative and
executive branches in defense of individual rights, freedom of the press, and on behalf
of political dissidents. When president’s party gained control of both legislative houses
between 1946 and 1983, however, the Supreme Court kept a low profile. Alfonsin’s
party that replaced Peron was considerably weaker on account of its minority status in
the Senate, and the judiciary declared unconstitutional a number of Alfonsin policies.
Menem replaced Alfonsin in 1989 with a far stronger administration because it
commanded majorities in both houses of Congress. Not surprisingly, by the
fragmentation logic, the courts became docile (Iaryczower, Spiller, and Tommasi 2002;
Chavez, Ferejohn, and Weingast 2004). 10

For other presidential systems as well, we would expect that, as a first approximation,
judicial activism would be inversely related to the coherence among the political
branches. The Mexican jurist Pablo Gonzalez Casanova and comparative judicial
scholar Carl Schwarz have both found that the Mexican Supreme Court has a history of
finding against the government with some regularity (cited in Larsen 1996; see also
Hale 2000). We would want to know not only how seriously those rulings
inconvenienced the government, but also if those rulings cluster in times when the
government’s capacity for overruling the Supreme Court is relatively low.

The Philippine Supreme Court before Marcos declared martial law in 1972 was
regarded as “one of the world’s most independent, important, and prestigious supreme
courts” (Tate and Haynie 1993). Presumably it was precisely because Marcos could not
control the other branches of government that he used the military to shut them down
and replaced them with his friends and relatives. Needless to say, Marcos’s hand
picked court was compliant, as were the courts of Bhutto’s and Zia’s military regimes in
Pakistan (Tate 1993). But the fluctuation of court activism in tandem with the court’s
expectation of the president’s ability to command a legislative majority seems a general
pattern (Helmke 2002).

The general point is that fragmentation gives courts a certain measure of independence.
When other political institutions are more fragmented, courts have less to worry about in
terms of override or reprisal. As a result, they are free to challenge the government.

4.3 Judicial Powers in Old European Democracies

10
Helmke (2002), while providing an account that is consistent in some ways with the fragmentation story spelled
out in the text, emphasizes a different angle. She argues that although Supreme Court justices nominally were
guaranteed independence through lifetime tenure, from the 1930s through the 1980s, the membership of the Court
was routinely changed with each regime transition. As a result, justices began to behave strategically, ruling against
the outgoing party and in favor of those who were soon to take office.
Given the broad public appeal of robust political and economic rights, why is judicial
review not universal among democratic regimes? Our answer has two parts.
Institutionally, the fusion of the legislative and executive branches in parliamentary
systems removes the possible space between branches for autonomous court action to
emerge on its own. But institutions represent political choices, and even parliamentary
systems can choose to adopt organs of judicial review, as we will see in the following
sections. As long as governments retain voter trust in their ability to uphold basic rights,
the demand for institutional adjustment may remain dormant.

The effects of institutional coherence on judicial discretion are clearest in Westminster

countries where a single majority party typically controls the executive. Sir Edward
Coke, Chief Justice of the Court of Common Pleas stated in 1610 that “in some cases
the common law will control acts of Parliament and sometimes adjudge them to be
utterly void” (Mezey 1983: 689). But this dictum, which found fertile soil in America’s
institutional environment, never became common practice in the UK.

To be sure, the Act of Settlement of 1701 that protected judges from being dismissed on
grounds other than judicial malpractice introduced a measure of judicial independence.
Kerman and Mahoney (2004) find that share prices increased following the Act because
investors were assured that the courts were in a strong position to enforce contracts.
Salzberger and Fenn (1999) find that UK judges are promoted on the basis of how
frequently their opinions are reversed, rather than on the basis of how often they find
against the government. But it is also true that the judiciary takes on the government
only rarely, and on issues that are of relative minor political significance (Salzberger
1993; Shapiro 2002; Chalmers 2000). This is precisely what we would expect in
equilibrium. With legislative and executive functions of government organized
hierarchically, court rulings at odds with the legislative majority can easily be overturned.

Parliamentary countries with proportional electoral rules are more fragmented than
Westminster systems in the sense that multiple parties with distinct constituencies and
platforms join together to form coalition governments. Even there, however, the
legislative parties in coalition operate according to “treaties” that the courts have little
reason to believe they can overturn without being overruled as long as the coalition
government is in power. Because the legislative and executive branches remain fused,
the courts have little room for maneuver.
If the court’s capacity to review legislation were high principally in presidential systems,
especially under conditions of divided government, the case for the political
fragmentation hypothesis would seem especially strong. Among parliamentary
systems, however, variation in levels of political fragmentation alone is a poor predictor
of judicial independence. In some European countries such as Switzerland, Belgium,
and Luxembourg, judicial review is explicitly prohibited in the constitution. The
possibility of constitutional review exists in Scandinavian countries and the Netherlands
but is rarely employed. Other countries in Europe and elsewhere adopted constitutional
courts during the decades after World War II with the express purpose of protecting
political and economic rights: Austria, Germany, Italy, France, Spain and Portugal as
well as Canada, Israel, Korea, South Africa, and post Communist countries in Eastern
Europe. Clearly this latter is a very different path to constitutional review than the
informal ebb and flow of judicial powers that can occur in politically fragmented systems.

4.4. Constitutional Courts in Europe and Beyond

In what Bruce Ackerman (1997) calls the “new beginnings” of constitutional democracy
in the post World War II era, the choice of judicial regime seems to reflect a compromise
between the American and old European models. Most new constitutions include
provisions for judicial review, but within the context of a separate constitutional court
that is independent of the regular judicial system and is more circumscribed by the
political branches. In this section we consider only briefly why some countries have
opted for the constitutional court model over the U.S. or older European models. Our
greater concern, which we sketch out here but leave in large part to future research, is
with the effects of political cohesion or fragmentation on how these courts function in
practice.

Ferejohn and Pasquino (2003: 250) note that "In all cases the constitutional court has
developed a jurisprudence aimed at, and increasingly effective at, protecting
fundamental rights." Constitutional courts have not only placed important limits on the
ordinary political processes, but they have done it increasingly well. Perhaps the
popularity of the courts have grown with their demonstrated effectiveness in protecting
rights, and the governing coalition has less political room for undermining court
autonomy.
Anti-Authoritarian Backlash. The European concept of the constitutional court was
developed by the Austrian jurist Has Kelsen after World War I. Unlike U.S.-style judicial
review, which Kelsen regarded as giving the U.S. Supreme Court creeping legislative
powers, Kelsen’s narrower view of the court’s role in guarding the constitution was
potentially a better fit with the European philosophical commitment to sovereign
assemblies (Kelsen 1942; Stone). While Austria and Czechoslovakia adopted
constitutional courts in 1920, Kelsen’s ideas did not find broader resonance in Europe
until after World War II, when all of the countries that had experienced fascist regimes
established constitutional courts (Brzezinski 1993). Following Austria’s decision to re-
implement its constitutional court in 1946, Italy (1947) and the Federal Republic of
Germany (1949) followed suit.

Italy and Germany seem to have adopted constitutional courts partially in response to “a
deep distaste for the dismal past” (Merryman and Vigoriti 1966) and to guard citizens
against the possibility of a political hijacking of the sort that Mussolini and Hitler had
been able to pull off (Adams and Barile 1953; Cole 1959: 967). 11 As Franz Kafka
memorialized in fiction, freedom from law gives totalitarianism its means to rule
arbitrarily (Dyzenhaus 1998: vii).

In both countries, however, the legislative opposition was more eager for judicial powers
than the ruling coalition. In Italy it was only after the Socialists and Communists gave
up hope for commanding a legislative majority that they stopped dragging their feet on
passing enabling legislation.12 In both countries a legislative supermajority approves the
members of the constitutional court, which ensures a broadly trans-partisan or
nonpartisan bench (Cole 1959: 969). To be sure, politicians have created ways of
dealing with the supermajority requirement, such as the lottizzacione in Italy whereby
the principal parties agree to split court appointments among themselves. This also
occurs in Spain. While this means that the court will be multi-partisan if not non-
partisan, it nonetheless remains outside the control of any single party.

11
A large percentage of the “civil liberties cases” in Italy have involved the constitutionality of legislation enacted
under Mussolini. Cole says that 1/3 of the first 40 decisions of the Court involved the constitutionality of laws and
regulations of Fascist vintage (Cole 1959: 980).
12
For eight years the legislature failed to vote implementing legislation until it became clear that the Christian
Democrats (DC) were consolidating their political strength (LaPalombara 1958; Volcansek 1999).
The establishment of constitutional courts in Greece in 1975, Spain in 1978, and
Portugal in 1982 followed a similar pattern to that of Italy and Germany. With the
collapse of authoritarian regimes in those countries, there was strong public support for
a judicial counterweight to potential collusion by the other branches of government.
Majority parties that otherwise might have resisted this impulse might well have felt
vulnerable to electoral backlash.

Decisions to adopt constitutional courts in former communist Eastern Europe and in

other former authoritarian regimes look broadly similar. Following the collapse of the
communist regime in the late 1980s, the Polish legislature established a new tribunal
with substantially stronger powers of judicial review including the authority to issue
“generally binding interpretations of statutes” (Brzezinski 1993: 186). Between 1989
and 1994 the Tribunal found unconstitutional 40 of 60 statutes it reviewed (Schwartz
1999: 201-202). A simple legislative majority chooses the Tribunal’s members to nine-
year terms it is likely that the Tribunal will sometimes represent the government’s
coalition and at other times will represent the coalition of the previous government. This
would suggest a wave-like pattern in court activism. In the early years the Tribunal’s
rulings could be overturned by a two-thirds vote in the legislature, but in the 1997
constitution this is no longer stipulated (Rose-Ackerman 2004: 73). To overrule the court
the legislature must either draft new legislation or revise the constitution, depending on
the nature of the dispute.

In Hungary a group of roundtable negotiators created a constitutional court in 1989, five

months before the first legislative elections under the new post-communist regime. To
prevent the incumbent government from dominating the court, members were to be
appointed by a representative committee of the National Assembly, and approved by a
two-thirds vote by the full legislature (Pogany 1993; Rose-Ackerman 2004: 76). In the
early years of the new regime the court was active, striking down laws even before the
first legislature began to sit. The legislature did not reappoint many of the first justices
when their terms expired in 1998 and the new court has been more conservative about
using natural law to decide cases where the constitution is ambiguous (Rose-Ackerman
2004: 80). It may be that the consolidation of coalition governments reduced the
government’s ability to organized legislative majorities to overturn bills.

In Russia, Yeltsin shut down the constitutional court in 1993 that parliament had
established two years earlier, and later established one that would be easier for the
president to manage. Instead of being elected by the Dumas, the court’s 19 members
would be chosen by the president and approved by the Federation Council where the
president has greater bargaining leverage (Remington 2002). Strong presidents have
subsequently kept the court from functioning with much vigor.

In Korea, three constitutions between 1948 and 1987 paid lip service to judicial review,
but the executive branch overpowered any attempts of the judiciary to exercise its
constitutionally stated prerogatives. In 1988, following massive anti-government
protests that ended decades of autocratic rule, Korea adopted a constitutional court on
the European model along with democratic reforms. There was widespread skepticism
about the independence this court would exhibit, given that all nine justices are
appointed by the President, though three of the nine must be from among nominees
submitted by the National Assembly and three from among nominees submitted by the
Chief Justice of the Supreme Court (West and Yoon 1992). The court seems to have
understood its strategic location: it held unconstitutional fourteen of the 37 pieces of
legislation it reviewed between 1988 and 1991 but, as Yang notes, the court was self
restrained in dealing with politically charged cases (Yang 1993). Still the court’s room
for maneuver made the government uncomfortable, particularly as parties began
alternating in power and the composition of the court became harder for the incumbent
government to control. In the early 1990s the ruling party considered a constitutional
amendment to curtail the jurisdiction of the court but backed down in the face of strong
public objections.

As the apartheid regime in South Africa collapsed, a broad coalition supported judicial
authority to protect political rights: not only the many whose rights had been infringed in
the past, but also the outgoing whites who wanted ensure themselves a soft political
landing. In 1986, two years after declaring that a bill of rights would be inconsistent with
the political tradition of the Afrikaaner, the minister of justice commissioned a study
group on human rights. The 1994 constitution following the abolition of apartheid
included strong provisions for judicial review (Hirschl 2000). A more representative
group of judges eventually replaced the white male judges that sat on the first
constitutional court (Sarkin 1999). But the South African case shows that judicial
powers may be strengthened not only at the instigation of newly empowered majorities,
but also by outgoing governments who feel newly insecure.

The Non-Authoritarian Cases: The Legislative Politics of Minority Protection. In some

countries, such as France, Canada, and Israel, the constitutional role of courts was
strengthened at the instigation of political actors who were, or expected soon to be, out
of government and therefore for whom the political insulation from courts was no longer
of value. As part of the minority, their interests more closely matched those of the public
whose interest in constitutional protections may routinely be higher than those of the
ruling government.

Post-revolution France has oscillated between the attractions of legislative sovereignty

and strong executive power, and has experimented periodically with its constitutional
design to adjust mix. The 5th Republic under Charles de Gaulle was meant to correct
the problems of weak governments in the hands of unstable legislative majorities. Of
judicial review, de Gaulle’s opinion was that “Three things count in constitutional
matters. First, the higher interest of the country…and of that I alone am judge.” The
other two constitutional matters for de Gaulle were political circumstances that had to be
taken into account, and legalism, for which he reserved the greatest disdain (cited in
Beardsley 1975: 212). The President, Assembly, and Senate each select three of the 9
members of the court for 9 year terms, but the Gaullists in the early years of the 5 th
Republic controlled all three branches. The only way to invoke the Conseil’s review
powers was to appeal either to the president or to majority leaders of the parliament.

Charles de Gaulle left office in 1969 and in the hands of weaker administrations the
provision for constitutional review took new shape. Once the Gaullists’ legislative
majority narrowed, space opened for the court to act with some autonomy. In 1971, in
what is sometimes known as France’s Marbury v. Madison, the court struck down a
government bill that restricted freedom of political association (Morton 1988). More
important was a 1974 amendment of Article 61 of the constitution, initiated by a
government that saw the time was coming when it would be out of government. Passed
by the requisite 3/5 legislative supermajority, the amendment extended the
constitutional court’s authority to rule on the constitutionality of a law upon petition by
any sixty members of the National Assembly or Senate. Prior to that, only the
President, the Prime Minister, the President of the Assembly, or the President of the
Senate could refer a law to the court (Deener 1952). Since all four were usually
members of the governing coalition, they were unlikely to submit one of their own laws
for review. This amendment has increased the court’s scope for action, as we will
discuss later.

Israel’s secular parties (Labor, Meretz, the Liberal Party’s section of Likud, and others)
established judicial review in Israel in 1992 after they had collectively lost legislative
seat share in successive elections to religious and minority parties. The Shas party
alone, representing Orthodox religious residents of development towns and poor urban
neighborhoods, increased its seat share from 4 Knesset seats in 1984 to 10 in 1996 and
to 17 in 1999, making it the third largest party in the Knesset after Labor and Likud
(Hirschl 2000: 109). The situation was much changed from 1949, when the Mapai, the
precursor to the Labor party representing secular middle class voters, was an
unchallenged ruling party and had no reason to delegate authority to the judiciary. The
parties representing secular voters formed a coalition to establish a strong judicial
oversight body that would protect their constituents’ political and economic rights from
encroachment by a shifting parliamentary majority (Hirschl 2000; Hofnung 1996).

4.5 Consequences: Judicial Politics in Constitutional Court Systems

What have constitutional courts done in practice, and how does their authority differ
from that of supreme courts of the U.S. type? Constitutional courts themselves vary in
their scope not only by their enabling provisions but also inversely by the coherence of
the political branch(es). Given super majority rules that are typical for appointing
members of constitutional courts and for changing constitutions, however, we would
expect only extraordinary levels of parliamentary coherence to have an effect on
constitutional court behavior.

The current French constitution, which combines presidentialism and parliamentarism,

gives the court room for maneuver when the president does not control an
extraordinarily large parliamentary coalition. Legislative minorities have made ample
use of the amendment of 1974 that allows any group of 61 legislators to invite the court
to review legislation. The Socialists, who had opposed the amendment, regularly used
the petition provision to oppose the d’Estaing’s government. by appealing its legislation
to the Conseil. It was the conservatives’ turn in the early 1980s when Mitterand’s
government began trying to nationalize industries (Morton 1988). Upon appeal from
parties on the right on behalf of share holder constituents, the court’s ruling added 28%
to the government’s cost of nationalization by requiring fuller compensation to the
previous private owners than the government had intended (Stone 1992).

Even for coherent coalition governments, courts may have additional scope for action
when the court’s preferences are closer than the government’s to those of the voting
public’s. In an argument similar to Susanne Lohmann’s about how public opinion can
increase the effective independence of the central bank, Vanberg (2001, forthcoming)
notes that the German government is more likely to alter legislation in anticipation of a
possible negative ruling of the constitutional court when its position is less popular and
when the process is transparent.

5. Measuring Independence Empirically

The previous section provided a typological sketch of the workings of, and variation
among, different types of judicial system, and considered some anecdotal evidence to
check these claims. In this section we think about how propositions of the sort we have
advanced might be tested empirically with greater rigor in future research.

As we noted earlier, one of the difficulties in grappling with the concept of judicial
independence lies in measuring independence. We can identify various aspects of this
concept – the ease with which a government can respond to a court ruling, for example,
and the set of alternatives the government has for responding to this ruling – but
identifying these aspects does not directly provide a measure that we could use in tests
of independence. Furthermore, the various tools that governments can use in response
to a court decision tend to exist in different combinations in different political systems,
and it is not clear how much weight should be assigned to each of these tools.

What scholars can do, however, is to rely on surrogate measures. That is, rather than
directly measuring independence by taking account of, and somehow adding up, its
constitutive factors, we can look for a measure that reflects the behavior we would
expect to find for different levels of independence. Two potential measures strike us as
appropriate and useful. First, we can examine how often the court overturns the actions
of the government. Second, we can examine court reactions to governmental attempts
at nationalization. We consider each in turn, and then identify conditions under which
these actions should be more likely to occur.

5.1 Overturning the actions of government

Political systems vary in the extent to which government can override judicial decisions
and the ease with which governments can change the court’s personnel. Both of these
types of actions play an important role in establishing independence: to the extent that
the government maintains dominance over the personnel on the court or can easily
override its actions, we would expect to see fewer instances of the court behaving
independently. And one indication that a court is behaving independently is that it is
willing to overrule the government’s actions. Consequently, one way to compare levels
of independence across political systems is to see how often the court overturns
government actions. More specifically, scholars can examine how often constitutional
courts, or at least courts with constitutional powers (in countries that do not have
separate constitutional courts), rule that laws passed by the government are
unconstitutional.

There is, of course, a potential downside to such a measure. Courts will anticipate
government reprisals; and to the extent that the court knows that the government will
respond to and perhaps even push the court, it will not take actions that invite such
reprisals. Put differently, in equilibrium, we might expect to find that the court never
rules against the government.

While this is a valid criticism, studies of strategic anticipation have produced mixed
results thus far – the jury is still out, so to speak. In one of the most comprehensive
statistical examinations of this phenomenon, Segal (1997) found almost no evidence of
judicial actors in the U.S. modifying their behavior in anticipation of future congressional
actions. On the other hand, Bergara, Richman, and Spiller (2003), examining the same
data, do find evidence that under certain conditions judicial actors do behave
strategically by anticipating future overrides. Rich case studies by Epstein and Knight
(1998) reach a similar conclusion, as does an earlier statistical study by Spiller and Gely
(1992).13

More importantly, two additional factors need to be taken into account. First, as we
have already noted, the tools that government against the courts can use differ in
severity. All impose some costs on courts, but some impose greater costs than others.
Being fired, for example, is more costly that being overturned. Courts will then weigh
the costs they might face against the potential benefits of reaching a policy outcome
that they prefer. The ratio of these costs to these benefits is likely to be larger in political
13
Furthermore, numerous studies demonstrate that Congress does respond to judicial decisions (e.g., Eskridge 1991,
Spiller and Tiller 1996).
systems where the court has less independence, and smaller in countries where the
courts have a great deal of independence.

Second, and related to the first point, it is possible that the court will make “mistakes” in
assessing these costs and benefits and, in particular, in the likelihood of being punished
for actions that it takes. Spatial models that operate under the assumption of complete
information typically predict that the action being investigated will never occur –
agencies never take actions that invite legislative reprisal, committees never introduce
bills, and so on. At the same time, however, these models also can provide insights into
the conditions under which the action in question might occur. Probably the best
example of this can be found in Cameron’s (2000) masterful examination of presidential
vetoes in the U.S. Cameron begins his analysis with a perfect information model that,
while providing other insights in the veto process, also predicts that, in equilibrium,
vetoes will never occur, because the legislature and the president will perfectly
anticipate each other’s preferences and actions. He then shows how introducing
uncertainty – over the location of the legislator who will be pivotal in overriding the veto,
or on the president’s preferences – can trigger vetoes.

In much the same way, uncertainty about the likelihood of reprisal can lead the court to
underestimate that costs that it might face if it takes actions that oppose the
government. If, for example, the court has a mistaken notion of the government’s
preferences, or if it underestimates the likelihood of government reprisals, we would
expect it to be more likely to challenge the government. In effect, then, the court is
making a mistake – had it known that the government would respond, and that the costs
would exceed the benefits, it would not have acted. Mistakes, or uncertainty about
reactions, are more likely to occur under some conditions than others, and we explore
these conditions below. For now we just establish that because of this possibility, court
actions overturning the government can serve as a useful measure of judicial
independence.14

14
A significant literature in the U.S. focuses on the specific question of whether the Supreme Court is a partner with
the elected branches of government or rather serves a counter-majoritarian function. The seminal paper in this area
is Robert Dahl’s (1957) “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” in
which he establishes that the Supreme Court rarely remains out of step with the other branches for very long, mainly
because these other branches have the power to appoint members to the Court. A long line of research has examined
this question, sometimes supporting Dahl and sometimes reaching the opposite conclusion (e.g., Funston 1975,
Gates 1992). Most recently, see Epstein, Knight, and Martin (2001) for how strategic behavior provides an
alternative explanation for Dahl’s conclusion. They argue that the Supreme Court is in step with other political
actors not because of replacement, as Dahl suggested, but rather because Supreme Court justices make decisions
strategically to ensure that they are not out of step.
5.2 Nationalizations

In addition to ruling on the constitutionality of laws passed by the government, courts

are also called upon to rule on other actions that the government takes. One example
of this occurs when the government nationalizes segments of the economy. The court
can, if it chooses, strike down these actions. Particularly when the judges on the court
are of different ideology, or party, or even outlook from the government – and to the
extent that these judges are independent – we would expect that courts would be more
likely to overturn these sorts of actions. Our knowledge of government coherence and
institutional rules of court recomposition provide us with ex ante expectations of how
much autonomy courts should have vis-à-vis the government. We think a fruitful line of
empirical inquiry would be to see how well our expectations comport with how
aggressive or quiescent courts were in protecting minority rights. How courts have
responded to governments’ nationalization schemes would be one such line of
investigation. Again, courts may take such actions because the consider that the
benefits of doing so or because they have made mistakes in interpreting the
preferences of other political actors. We turn next to an examination of when such
mistakes will be likely to occur.

5.3 Elections and Independence

We have noted that to the extent that political actors all perfectly anticipate each

other’s actions, we should not expect to see any court decisions that run counter to

the government’s preferences. But we also argued that the court might make

mistakes. It would seem useful, then, to identify the conditions under which these

mistakes are most likely to occur.

Most obviously, courts are most likely to make mistakes when they are uncertain about
the preferences of other governmental actors. Perhaps the highest levels of this sort of
uncertainty occur right after an election, when new political actors take office. The
court, accustomed to dealing with the previous political officeholders, will be less certain
about the exact preferences of the new politicians, and may also be uncertain about
how far the new politicians will turn in order to punish the court. In other words, the
courts will be uncertain about the potential costs that they will face.

Any election, of course, can increase uncertainty about preferences. But courts are
more likely to be uncertain when an election leads to a major shift in party control of
government. This can occur when a new party takes over in a single-majority system,
with a left party being replace by one on the right, or vice versa; when an election brings
new partners into a coalition; or when a shift occurs from divided to unified control of
government. In any of these cases, there will be a period where the court is trying to
figure out exactly what the government will, or will not tolerate. And this uncertainty is
likely to lead to more judicial actions that challenge the government. Hence, we should
expect to find more instances of courts overturning governmental laws or ruling against
nationalizations right after elections.

6. Conclusions

This essay has not attempted a comprehensive survey of the vast literatures on the
nexus between politics and law, but has primarily focused instead on the narrower
subject of judicial independence: what is it, how does it arise, and how do we know it
when we see it? We have sketched out an argument for why judicial autonomy ought to
relate inversely to the level of coherence in the political branch(es) of government,
relative to the level of coherence needed to overturn the court’s rulings.

Though this seems simple enough, it is harder than one might suppose to gauge judicial
independence empirically because, if courts and legislatures anticipate the other’s
response in their own actions, there may be little conflict that erupts in public view.
Without knowing the ideological position of the court or of the political coalition trying to
hold judicial interference at bay, the absence of judicial findings against the government
could mean either that the court had restrained itself rather than to invite legislative
override, or that the legislature had incorporated the court’s position in its laws rather
than to invite a negative judicial ruling. In fact, if the actors have perfect information
about the other’s preferences and if they behaved strategically, we ought never to see
legislative overrides and negative judicial rulings. One is reminded of the French
constitutional court, which has explicitly incorporated consultation between the court
and government with the result that laws include the anticipated reactions even before
they are promulgated.

Although strategic anticipation certainly complicates empirical analysis, we nevertheless

think it would be useful to take advantage of ideologically polarized or low information
situations, such as following new elections, to look for episodes of failed self-restraint.
Even in France, Stone Sweet (1992) tells of conflicts between the constitutional council
and the government in periods when members appointed by the previous government
dominated the court. We might also expect that courts and governments might have
relatively poorer information about the other’s likely behavior following elections.

We have left many questions unanswered. Perhaps the most burning issue we have
left on the table is what accounts for the national variation we observe in provisions for
constitutional review in the first place. Political fragmentation seems to go far in
explaining the correlation between divided governments and judicial autonomy. But why
do some systems without particularly fragmented political systems establish
constitutional courts, or for that matter, why do majorities in parliamentary systems
without constitutional courts so often restrain themselves from infringing on the rights of
minorities? We are inclined to think that electoral competition, and the fear that majority
coalitions have of losing support at the margins, is a common underpinning in the
judicial politics of all democracies. Given the importance to judicial autonomy
insufficient legislative coherence for possible overrides, competitive elections are likely
to be more fundamental than the trappings of “independent” courts for rule of law and
minority protection in developing countries.

JUDGES: Their appointment, transfer, dismissal, etc., the regulation of these

factors, and the role these have in determining the federal characters of judiciary

The Indian Constitution has not indeed recognized the doctrine of separation of powers
in its absolute rigidity 15. This motive behind this was so that the different organs can
15
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549
keep a check on each other. It essential also to prevent one organ from being so
independent so as to decide its all organization and functions by itself and be immune of
any outside control.

In the case of judiciary, which is understood as a ‘safeguarding’ organ of the

Constitution, there has to be check on its procedures too.

If we see it in the light of the provisions of the Constitution regarding the recruitment,
transfer, and dismissal of the judges, then at places there have been works assigned to
the Executive and the Legislature in this regard. But this has been done keeping the
sanctity of the structure called judiciary intact i.e. nowhere the outside control is allowed
to go beyond the say of the judiciary itself.

Herein, if we refer to some of the provisions of the Constitution and the interpretation of
the courts of them, which show the control of the judiciary itself in the above said
matters, might at some time raise presumptions questioning the federal characters of
the judiciary.

Some of the decisions of the Supreme Courts which have prompted to the raising of
such questions are being discussed below.

Transfer of the judges of the High Court.

The provision for this can be seen in Art. 222 of the Indian Constitution.

We contemplate that it is in the light of the federal structure of the Constitution of India
that the various provisions of the Constitution are to be read and if necessary
interpreted and therefore we expect the same for Art. 222 which enables the President
of India to transfer a judge of the High Court. But, after the judgment of S. P. Gupta v. U.
O. I.16 (Second Case) rendered by the Supreme Court, the words “after consultation
with the Chief Justice of India” occurring in Art. 222 have been given an interpretation
that the President may only after the consent of the Chief Justice of India transfer a
judge from one High Court to another High Court. With deepest respect, it is submitted
that this interpretation militates against the federal structure of the Constitution, and
16
AIR 1994 SC 268
hence also the federal structure of the Indian Judiciary. It is also against the
independence of the High Courts and seeks to make High Courts subordinate to the
Supreme Court of India.

Subordination of the ‘Subordinate Judiciary’ to what extent?

In India, the Constitution itself employs words as ‘subordinate courts’. This has been
done in Art. 235 of the Constitution. The terminology itself is vague as it raises
presumptions of the judiciary being a ‘subordinate’ body. Though what it contemplates is
not subordination to any second agency outside the judicial envelope, but to the other
courts placed high in the judicial hierarchy. It is this very practice that dilutes the
principle of federalism.

Regarding the appointment of the judges of the ‘subordinate’ courts, the position is all
the more worse. The primacy given to the High Courts in the same is not as per the
norms of a true federation, and besides the very high interpretation of such power of the
High Courts by the courts questions the federal character. This is because, if federalism
has to be brought in the judicial set up, then, it is not only at the level of the Supreme
Court and the High Courts, and by creating two sets of judiciary at two different levels,
the central and the States, but it has to be made sure that the federalism principle is
deep rooted till the lowest level of courts that is created. This can be done only by
providing the similar autonomy to the ‘subordinate’ courts too.

The decisions of the Supreme Court can further elaborate the same point.

In the case of Chandra Mohan v. State of U. P.17, the Supreme Court held that the
appointment of the District Judges on the recommendation of a Select Committee
consisting of two High Court Judges and Judicial Secretary, and not in consultation with
the High Courts as a whole, was unconstitutional. Next, the Supreme Court held that the
appointment to the posts of district judges, and their first posting, are to be made by the
Governor in consultation of the High Court, and that the Consultation of the High Court
is madatory.18 It was also ruled that the consultation with the High Court has to be

17
AIR 1966 SC 1987
18
Prem Nath v. Rajasthan, AIR 1776 SC 1599
meaningful and purposive, and that the opinion of the High Court should be given full
weight by the Governor.

In relation to restricting the power of the High Court in relation to Art. 309, it was held
once that the consultation with the High Courts is only for making the rules and not for
actual selection of appointees.19

However, in this regard the Law Commission, has suggested that the Article be suitably
amended so as to provide that the persons appointed to the subordinate judiciary may
be persons recommended by the High court.

Also there have been decisions showing that the High Court is the sole custodian of the
control over the judiciary. An enquiry into the conduct of a member of the judiciary can
be held by the High Court alone and no other authority. 20 Also the power to transfer
subordinate judges, including district judges, from one place to another 21, and the power
to promote persons from one post in the subordinate judiciary to another, and the power
to confirm such promotions22 vest in the High Court and not the State Government.

These decisions do not confirm to the federal principles and therefore, hamper the
federal character of the Indian Judiciary.

FEDERALISM IN THE INDIAN JUDICIARY

The federal feature is the dominant feature of the Indian Constitution. And this is
reflected in the features of the Constitution also. To say that we have a federal
government means impliedly that the federal features are present in the organs of the
government too. The organs are identified as being Legislature, Executive and the
Judiciary.

When talked in reference of the judiciary, therefore, the above feature has be true then.
But as seen in the previous chapter that certain provisions of the Constitution do not

19
Farzaad v. Mohan Singh, AIR 1968 SC 1426
20
Punjab & Haryana High Court v. Haryana, AIR 1975 SC 613
21
Assam v. Ranga Mohammad, AIR 1967 SC 903
22
Assam v. Sen, AIR 1972 SC 1028
allow for a federal judicial set-up and even if the provisions of the Constitution allow,
then the practices of the Supreme Court have been such that the principle of federalism
seems to be watering down.

But can a mere superficial reading of the provisions of the Constitution, without going
into the actual requirements of the same, and due to a few anti decisions of the
Supreme Court, it can be concluded that there is no judicial federalism in India?

We need to read the provisions of the Constitution with a holistic approach and not with
a narrow outlook, look into the technicalities and the procedures of the courts at the
central and the state levels and then finally ascribe any feature to it, be it then federal or
unitary or any other.

Interpreting the provisions of the Constitution

Various articles of the Constitution should be read in full colour and the object behind
should be seen before deriving any conclusion on their basis.

By reading the articles 139A, 141, 144, etc. it cannot be said that the High Courts are
subordinate to the Supreme Court. Because if we do so, it will be against the basic
structure of the Constitution of India. What is envisaged by the Constitution is a federal
structure in the Union of States where the union shall have high Court as its highest
judicial authority with power of superintendence over its subordinate courts within the
States. But no such power is conferred in relation to Union of India with the Supreme
Court. The reason obviously is to protect the autonomy or the independence of the
State High Courts.

There are other Articles too, which point to the fact that the High Courts are no inferior
courts to the Supreme Court.

Reference can be made to Art. 218 of the Constitution, which provides for the
impeachment of the High Court judge. The procedure provided for that purpose is the
same as that provided for impeaching the judge of the Supreme Court. Form these
provisions it is clear that it was never the intention of the framers of the Indian
Constitution to make High Courts subordinate to the Supreme Court of India or else,
provisions analogous to Art. 227 giving disciplinary or supervisory authority to the
Supreme Court of India over the High Courts would certainly have been made in the
Constitution itself. If Art. 144 is referred in this regard as being one analogous to Art.
227 then it has to be mentioned here that the words used in Art. 144 are ‘in aid of the
Supreme Court’ and not ‘under the Supreme Court’.

The qualifications for appointment of the judge of the Supreme Court are not different
than those prescribed for appointment as a judge of the Supreme Court.

A perusal of Articles 32 and 226 also brings out the facts that the High Court is not in
any manner subordinate to the Supreme Court and in fact is vested with more powers
than the Supreme Court by the Constitution itself. Art. 226 clearly provides that
notwithstanding anything in Art. 32 every High Court shall, have the power to issue the
writs for enforcement of the fundamental rights and for any other purposes, whereas the
provisions of Art. 138 and Art. 139 require a law made by the Parliament to enlarge or
confer the jurisdiction under the Supreme Court of India.

Therefore, the Constitution makes both the High Courts as well the Supreme Court
competent courts for the purposes of fundamental rights, rather, he High Courts have
more powers since it is competent to hear matters in relation to all types of legal rights
in Art. 226 whereas the Supreme Court can hear only matters relating to fundamental
rights in Art. 32.

Art. 139A is also called to make the Supreme Court more powerful than the High Courts
and also tending to encroach upon the freedom of the High Courts. But in this relation,
there is a practice in the U. S. too, where in certain circumstances, cases from the State
Courts are transferred to the Federal Courts, e.g. if it is felt at times that local feeling,
sentiments, prejudices, or prepossessions may preclude a free trail in a State Court, or
in cases where it is made to appear that the parties claim title under grants from
different States, etc. The similar practice has been adopted in India when cases
involving substantially the same question of law are pending in the Supreme Court and
one or more High Courts, or when the cases involve substantial questions of general
importance, etc.23

23
West Bengal v. U. O. I., AIR 1963 SC 1241; S. P. Gupta v. President of India & others, AIR 1982 SC 149
This practice does not mean that there is no federalism principle in our Constitution, or
that it is wholly based on unitary principles, but that it is an attempt for the unification of
the entire system to prevent it from disintegrating and also to prevent the coming into
force of multiple and conflicting decisions on the same subject matter. Had this been not
the practice, it would have resulted in contradiction and confusion, and would lead to the
same law interpreted and applied in one manner in one State and another manner in
another State.

One another condition that is required for the a federal structure, besides the States’
being independent is that the different States (component units of the federation) work
in coordination with each other. Art. 261 of the Constitution favours this. It provides for
the ‘full faith and credit’ clause. The States being independent units, without such a
provision the acts, records, etc. of one State would not have been recognised by
another. Without this clause the ‘judgments of one State’ would have been regarded as
‘foreign judgments’ in every other State. But this clause provides that a judgment
rendered by a competent court of one State is conclusive on the merits in another State
and that it will receive the same credit as the judgments of that other State itself.

Practices of the courts

Though it had been asserted in some earlier decisions of the Supreme Court that the
right to move the Supreme Court was an absolute right and that the existence of
alternative remedies was irrelevant 24, but there has been a sea change since then. The
Supreme Court now declines to interfere except in a few ‘public interest’ cases telling
the applicant to move the concerned High Court. The same practice has also been seen
to apply if the applicant has an alternative remedy that he can exhaust before coming to
the Supreme Court. The position was made clear in the case of Tilokchand Motichand v.
H. B. Munshi25 where it was held:

“The Court refrains from acting under Art. 32 if the party has already moved the High
Court under Art. 226. This constitutes a comity between the Supreme Court and the
High Courts. Similarly, when a party had already moved the High Court with a similar
complaint and for the same relief and failed, this court insists on an appeal to be
24
K. K. Kochunni v. State of Madras, AIR 1959 SC 725; Kharak Singh v. State of U. P., AIR 1963 SC 898.
25
AIR 1970 SC 898
brought before it and does not allow fresh proceedings to be started. The motivating
factor is the existence of another parallel jurisdiction in another court and that court
having been moved, this court insists on bringing its decision before this court for
review. Another restraint which this court puts on itself is that it does not allow a fresh
ground to be taken in appeal. In the same way, this court has refrained from taking
action when a better remedy is to move the High Court under Art. 226 which can go into
the controversy more comprehensively than this court under Art. 32.”

The principle of res judicata has also started to be followed in India, which provides that
when a court of competent jurisdiction renders a final judgment on the merits, that
judgment is conclusive of the of the causes of action and of the facts and issues
litigated in it in the same or other judicial tribunals of concurrent jurisdiction.

The issue of res judicata was decided in the case of Daryao v. U. P.26, wherein it was
held that when a High Court has dismissed an application under Art. 226, on the merits,
and such dismissal is not set aside on appeal, the principle of res judicata operates and
that, accordingly, an application under Art. 32, on the same grounds, would not lie.

These show that the High Courts are just not any courts, and a sufficient importance
has been given to the High Courts.

Also in cases of appellate jurisdiction, though it is said that every case is capable of
reaching the Supreme Court to hear its verdict in the matter involved, but there are
sufficient bars created in this regard. For an appeal to lie under Art. 132, it is essential
that the High Court should provide the necessary certificate for the same and the matter
must necessarily involve a substantial question of law as to the interpretation of the
Constitution. This forms an essential requirement for the purpose of bringing an appeal
under Art.132. Also, if the appeal is not competent under Art. 132, the Supreme Court
will not hear it even if the High Court has granted a necessary certificate. 27 The
Supreme Court has emphasized that for grant of the certificate, the question,
howsoever important and substantial, should also be of such pervasive import and deep
significance that in the High Court’s judgment it imperatively needs to be settled at the

26
AIR 1961 SC 1457
27
Syedna Tahir v. Bombay, AIR 1958 SC 253, 255
national level by the highest court, otherwise the court will be flooded with cases of
lesser magnitude.28

This practice not only highlights High Courts’ importance in the issue but also puts the
point that High Courts are equally competent courts in settling matters, and at some
times the Supreme Court has to be called in to keep the entire system intact.

Thus, by looking into the remote possibility that a case will be decided by the Supreme
Court, one cannot disregard the sufficient safeguards created to keep the federal
structure intact. A close study of the system shows that federalism is tried to be
maintained and protected at every stage. If in certain matters it is to be liquidated, then
the question involved in the case, the general importance associated with the case
needs to be given vitality, than resorting to hasty criticism of the whole structure or
misunderstanding the idea or the concept which had been materialized so meticulously
by the Constitution framers.

A declaration that the High Courts are inferior courts would amount to the viewing of the
whole system with a lenient perspective leaving less importance to the High Courts,
which are also Constitutional Courts and to whom special recognition has been given by
none other than the Constitution itself.

Judges: Provisions and Practices which decide the federal characters.

Position as we had seen in the matter of transfer of judges, that the position of the chief
Justice of India was made very strong, seemed to obliterate the federalism principle, but
then again there have been instances where the Supreme Court has delivered
judgements trying to keep up the principle of federalism. This can be seen to be done in
the case of In Re: Under Article 143(1) of the Constitution of India 29 where it was held
that if the final opinion of the Chief Justice of India is contrary to the opinion of the
senior Judges consulted by the Chief Justice of India and the senior Judges are of the
view that the recommendee is unsuitable for stated reasons, which are accepted by the
President, then the non-appointment of the candidate recommended by the Chief
Justice of India would be permissible. This case limits the power of the Chief Justice to

28
State Bank of India v. N. Sundara Money, AIR 1976 SC 111
29
AIR 1999 SC 1
an extent. Though it cannot be said to strengthen the federalism principle to much
extent, but can be seen as an effort towards the same.

Also making a reference to the power of the legislature to make laws regarding the
recruitment and conditions of service of persons appointed to public services and posts,
this power of the legislature can be seen as a tool restricting the power of the High
Courts to, if not much, then atleast to some extent. In the case if State of Bombay v.
Narottamdas Jethabhai30 the power of the provincial legislature to decide upon the
jurisdiction of the City Court was upheld. Also in the case of State of Bihar v. Bal
Mukund Shah31,in which a question arose regarding the scheme of reservation to be
made for the appointment of the members of the Subordinate Judiciary. There it was
held that the State Legislature cannot up set the mandate of Art. 233 while enacting a
law regarding the above said. This shows the legitimacy of the power of the legislature
for the purposes of the Subordinate Judiciary. It was therefore held that once Art. 335
has to be given its full play while enacting such a scheme of reservation, the High Court,
entrusted with the full control of the Subordinate Judiciary as per Art. 235, has to be
consulted.

These decisions somewhere maintain the federal characteristics by not allowing the
entire control of the Subordinate Judiciary to yield to one single body, i.e. the High
Court.

CONCLUSIONS AND SUGGESTIONS

In the light of the above discussion we can conclude that since India is a federation,
therefore, there exists a federal judicial set up as well. It is not because of this but also
since we can locate the federal characteristics of the judiciary in its organization, its
practices, procedures, etc. Though at some places, it is felt that the federal set up faces
severe set backs, and being done either by faulty organization, or some of the
constitutional provisions, or due to wrong interpretation of the provisions of the
Constitution.

30
AIR 1952 SC 69
31
AIR 2000 SC 1296
It has also to be understood that on certain occasions the compliance with the federal
principle might bring in undesirable results or something that is not at all contemplated,
or might hamper the justice delivery mechanism, then on such instances, there is
needed to be adopted an approach tolerative enough for incorporating some another
features of some other type of judiciary or justice delivery system. To do so to meet the
exigencies of situations on some occasions will not be decisive of the final trait of any
set up.

Herein we emphasize on the adoption of the federal features because this suits to the
needs of our country. By keeping the federal characters, the Constitution framers chose
to retain the strong ‘national’ character. Though the term ‘federal’ or ‘ferderalism’ is no
where in our Constitution, or for that matters in the American Constitution as well. Had
the term also been used, then too it would not have made a vital difference because
federalism has several manifestations, depending upon the location of the decisive
authority and the dynamics of relationship between the Centre and the States.

We, in India aim for a democratic society, wherein, government even upto the grass
roots is contemplated, then for the management of such a government, there judiciary
has also to be organized on similar lines.

Though the structure is such that at certain places, it allows percolation, but that does
not seem to be capable enough to allow the attempt towards the concept of ‘judicial
federalism’ to dismantle by certain wrong decisions and some mis- interpretation of the
Constitution.

For this the courts should deliver decisions in the backdrop of the theme of our
Constitution. They should be coherent with the Constitutional provisions as well.

As the Constitution does not emphasize on a strict separation of powers, therefore in

the same line we can say that the Constitution does not cannot enforce strictly for the
federalism principles as well. That we say after looking into the limitations of our country,
its features, and seeing to the varying and growing needs of time, and thus in order to
avoid friction there needs to be adopted a federal approach keeping the federal
structure intact. This would also prevent our structure either from disintegrating or
yielding to the unitary forces. The classical theories of separation of powers, federation,
etc. cannot be adopted as they are. They need to be modified according to the
conditions prevailing in each different place.

Therefore, what kind of federalism do we have and how does it respond to the basic
realities and pressures and pulls of contemporary polity, what have we learnt form our
experience, what sort of realignment would be preferable and efficient, do our
Constitutional conventions and practices detract form this model or go in its favour, what
is the trend and how do we catalyse the movement towards the desirable goals, all this
needs to be given a thought. This is, therefore, a grey area of constitutional governance
which requires a thoughtful deliberation.

This paper is therefore, an appraisal of the existing federalist package operating in

India, particularly in the context of the constitutional provisions and looks at the
prospects for the future. It does not set forth propositions, but seeks to initiate a debate.

CHAPTER- II
Equality, Justice and Affirmative Action :
Theoritical considerations.
1. Nature of Equality.
The expression “Equality” is incapable of a single definition, as it is a notion of many
shades and connotations and has been viewed by Philosophers from many different
angles. There is a variety of ways to express the idea of equality and different writers
tend to emphasize some forms of equality, rather others, as of overriding
importanceequality
before law, equality of basic human rights, economic equality or equality of
consideration for all persons or equality of opportunity.32 There are those who while
being indifferent to or even dismissive of one aspect of equality are deeply committed to
another aspect of it. For example most schools of thought in fact cater to the view that
complete equality would be difficult to come by. But while there are some that argue that
an egalitarian distribution is inimical to freedom and development there are some that
insist on precisely the opposite, viz, that an egalitarian distribution is a necessary
prerequisite
to any meaningful freedom and development.33
It is no doubt frequently asserted that all men are born equal, but there is no unanimity
as
regards the common attributes which makes them equal.34 According to Bernard
Williams, “the idea of Equality is used both in a statement of fact or what purport to be a
statement of fact- that men are equal, and in a statement of political principles, or aims
that men should be equal,35 as at present they are not. It is in this later sense that the
notion of equality belongs to the sphere of values. It is in moral judgements to the effect
that equality is a good, that it ought in some cases to exist, and that this is so in spite of
the obvious ways in which men are unequal in strength, talent and intellect. Nor have
most philosophers wanted an equality which is total. The claim that men are equal is a
claim that in fundamental respects, regardless of obvious differences between one man
32 Alexis De Toqueville said that men have greater passions than for liberty. J. S. Mill
realized the
importance of encouraging the widest possible diversities of mind and taste. He argued
that the best state
for human nature is that in which while no one is poor,,no one desires to be rich.
Although he urged that
social policy be directed to suppress to increasing equality, he never intended to convey
the idea that it
should suppress varieties of individual character and genius. But it is only in a society
marked by large
measure of economic equality that such varieties were likely to find their expression and
due need of
appreciation. It is a paradox that the more anxiously a society endeavours to secure
equality of
consideration for all its members the greater will be the differentiation of treatment.
33 Pulin B Nayak, “On Equality and Distributive Justice” Economic and Political Weekly,
Annual Number
March 1991.
34 Dallmayer, Functionalism, Justice and Equality, (1967), 78 Ethics 10.
35 The Idea of Equality, Bernard Williams, In a “ Companion to Contemporary Political
Philosophy” Edited
by Robert Goodin and Philip Petit, Blackwell, Oxford 1995.
3
and another, all men deserve to be given certain kinds of treatment. They have a right to
certain kinds of equal treatment in crucial aspects of their lives, though not in all.36
Indeed there are few words that admit of such wide meanings and interpretations as
that
of equality. Economists usually focus on the notion of equality of income, wealth or
some
measure of individual well being, such as utility. However Walzer (1973) has
emphasized, at a wider level one may legitimately be concerned with the notion of
equality involving not just wealth and power, but honour, work, education and free
time37. All of these refer to what we might call equality, or inequality, of individual
circumstances. But at the level of societal arrangements, there are important notions of
equality of opportunity, equality before law and equality of treatment, to name a few of
the commonly examined concepts.
Rashdall advances the principle, that every human being is of equal intrinsic value and
is,
therefore, entitled to equal respects as an exact expression of the Christian ideal of
brotherhood. He, however, points out that the principle does not require that every
person
be given an equal share of wealth or of political power but rather equal consideration in
the distribution of ultimate good.38 He takes it to be self-evident, to be an analytical
judgment, to say that what is recognized as being of value in one person must be
recognized as being of same value in another, provided it is really the same thing that is
implied in the assertion that it has value. Such axioms, he agrees, cannot of themselves
solve practical moral problems. They are purely formal but they do offer guidelines on
how to distribute the good once its nature is known. What is implied by the principle of
equal respect for all persons is impartiality in the treatment of all men; it rules out
inequality, or rather, arbitrary inequality, inequality not justified by the requirements of
social well being, or some other general and rational principle in the treatment of
individuals. No man he asserts, has a right to anything unconditionally except the right
to
be equally considered. The rights of man are all ultimately resolvable into the one
supreme and unconditional right –the right to consideration.39
This meaning of of equality was clearly identified by Immanuel Kant in “Fundamentals
of Principles of the Metaphysics of Morals”, when he distinguished the possession of
value from the possession of dignity. Whatever has a value can be replaced by
something
else which is equivalent in value; whatever, on the other hand, is above all value, and,
therefore, admits of no equivalent, has a dignity. So, commodities that satisfy human
wants and needs have a market value. What appeals to human taste, even in the
absence
of need, may be said to have emotional or imaginative value. But some things in the
world cannot be measured on any scale of values. They are invaluable, priceless, and
that
is the case with every human being. One may be better cook than another or a better
student or legislator, and in the restricted sphere of conduct we may and often must
appraise their relative merit. But as men they do not have relative merit, for what has
36 Democracy, Equality and Freedom, Edited by Upendra Baxi, Oxford University
Press, New Delhi 1993.
37 Complex Equality, By Michael Walzer, in “A companion to Contemporary Political
Philosophy” edited
by Robert Goodin and Philip Petit, Blackwell, Oxford, 1995
38 Rashdall Hastings, The Theory of Good and Evil, (1907) Vol I, 223-224.
39 Ibid, page-147-148.
4
relative merit may, in so far as it has that merit, be replaced by another like entity with
equal or greater merit. A good cook may be replaced by a better cook; a good legislator
by one at least equal in talent for legislation. But as a person, no human being can
possibly be replaced by another. What entitles him to a place in this sphere is simply his
having human dignity; it is a quality intrinsic to his being. This very thought is expressed
in the now commonplace remark that the dignity of every human being must be
respected. Dignity here connotes not pride or manner, but the intrinsic worthiness or
every human being, without regard to his intelligence, skills, talents, rank, property or
beliefs. He who affirms the principle of human dignity in this sense respects equality.40
Analysing Rawls’ theory of Justice, Dworkin reaches the same conclusion, that “justice
as fariness rests on the assumption of a natural right of all men and women to equality
of
concern and respect, a right they possess not by virtue of birth or characteristic or merit
or excellence but simply as human beings with the capacity to make plans and give
justice. He goes on to say that “ Rawls’ most basic assumption is not that men have a
right to certain liberties that Locke or Mill thought important, but that they have a right to
equal respect and concern in the design of political institutions. Thus according to
Dworkin, Right to equal concern and respect is the most fundamental right of all the
rights. This right according to Rawls is owed to human beings as moral persons, and
follows from the moral personality that disntinguishes humans from animals. Thus
human beings already possessed this right when they agreed on the two principles of
justice enunciated by Rawls. This right is more abstract than the standard conceptions
of
equality that distinguish different political theories . It permits arguments that this more
basic right requires one or another of these conceptions as a derivative right or goal.41
Looking at the concept of Equality from a common man’s point of view, the principle of
equality was originally, a common man’s protest against the gross inequalities created
by
the superior claims of the nobility in ancient societies. The idea of equality has,
therefore
grown out of the idea of privileges.42 These inequalities and privileges persists even in
our own times. Inequality, as such, refers to the conditions created in society by a
limited
number of privileged people, who have always dominated the State and used its power
for their own purpose.43 This class of vested interests makes the fulfilment of their
private
desires the criterion of the public good. Equality means, first of all, that special
privileges of all kinds should be abolished. All barriers of birth, wealth, sex, caste, creed
and colour should be removed so that no one suffers from any kind of social or political
disability.
There should be, in short, no difference between man and man and whatever rights
inhere
in another by virtue of his being a citizen must inhere and to the same extent in me as
well. It means that I am entitled to the enjoyment of all those social and political
privileges to which others are entitled. My vote in the election of the representatives is
as
40 See Bernard Williams, AO, “the Idea of Equality” in “A Companion of contemporary
Political
Philosophy, op cit f.n.6.
41 Reservation Crisis in India, Bar Council of India Trust, Universal Book Traders, New
Delhi, 1991. Also
see Taking Rights Seriously by Ronald Dworkin, Harvard University Press, 1997.
42 A.C. Kapoor, Principles of Political Science, S Chand and Company, New Delhi,
1984.
43 Ibid.
5
valuable and potential as that of any other. I can also become the recipient of any office
of the State for which I may be eligible.44 To refuse any man access to authority is a
complete denial of his freedom, because, unless I enjoy the same access to power as
others, I live in am atmosphere of contingent frustration. One who lives in an
atmosphere
of frustration has neither any inspiration in life nor any incentive for it. He accepts his
place in society. He accepts his place in society, which accident of birth has given him,
as
a permanent condition of his life. It is in this way that the faculty of creativeness is lost
and men or a class of men become “animate tools” which Aristotle described as the
characteristic of the natural slave. There can be no equality in a society where a few are
masters and rest are slaves. The principles of equality, accordingly, means that
whatever
conditions are guaranteed to me, in the form of rights, shall also in the same measure,
be
guaranteed to others and that whatever rights are given to others shall also be given to
me. The chief characteristic of a right is its equalitarian basis.
1. Theories of Equality.
In this section we shall have a brief look as to how various political ideologies theorise
the concept of equality to show that though the thinkers of all hues look at it from
different perspectives, but there is surprising unanimity in their line of thinking and
almost all of them come to some common conclusions ending up in talking, in terms of
justice to all individuals and groups, though they will have different perspectives in their
conceptions of justice. It is this element of justice that leads to the adoption of policies
on affirmative action programmes. Demands of justice compels the state system to
resort
to the protective discrimination kind of policies and that precisely forms the
jurisprudential basis of benign discrimination. But before we talk of the common
conclusions and common concerns amongst philosophers of various hues, let’s have a
look at their viewpoints about equality. We shall cover, liberals, libertarians, Fabians and
Marxists.
1.1 Liberal Theory of Equality : John Rawls.
Strictly speaking, there is nothing like a liberal theory of Equality. However, since
liberalism has been a very amorphous concept, dynamic and changeable, implying
almost
a compelling passion for liberty, representing a system of ideas, that aim at the
realisation
of pluralists society and diversity in politics, economics religion and cultural life, it
would not be far of the mark to say that John Rawls represents that face of liberalism
which vies for realization of equality of all individuals emphasizing on the care of the
least privileged.. Though we find an espousal for equality of all in Locke, Bentham, Mill
and Greene, however in modern times the most forceful argument has been developed
by
John Rawls in his seminal work, “A theory of Justice”.45 Rawls argues that the
principles
of justice are those that would be chosen by free and rational individuals if they had to
choose behind a veil of ignorance as to what position in society, they might themselves
occupy. Rawls makes a persuasive case for a conception of justice that would improve
44 Harold Laski, A Grammar of Politics.
45 Oxford University Press, 1972.
6
the chances of the least advantaged members of society. In other words inequality is
only
justified if it results in the poor being better off in the social dispensation. Rawls calls this
“the difference principle”. Since the Rawlsian prescription is geared exclusively towards
improving the lot of the worst off members of society, the rule would obviously be more
egalitarian than the Utilitarian principle. More specifically, on the question of bringing
about greater equalities.46
Rawls has identified what he had called primary social goods. There are things that
every
rational man is presumed to want including rights and liberties, opportunities, powers,
income and wealth, and the basis of self respect. For Rawls basic liberties have
priorities
over other primary goods and each person is to have an equal right to the most
extensive
basic liberties compatible with a similar liberties for others. Having ensured basic
liberties, Rawls is for ensuring an equitable distribution of primary goods . According to
him, primary goods are the ncessary means, whatever may be one’s system of ends.
He
observes; “Greater intelligence, wealth and opportunity for example, allow a person to
achieve ends he could not rationally comtemplate otherwise.47 He then goes on to
propose an index of primary social goods, though he concedes that the attempt would
face several difficulties.
Rawls is very clear in his approach that undeserved inequalities call for redress and
since
inequalities of birth and natural endowment are undeserved, these inequalities are to be
somehow compensated for.48 The difference principle holds that in order to treat all
persons equally, society must give more attention to those with fewer native assets and
those born into the less favourable social positions. The idea is to redress the bias in
the
direction of equality, maintains Rawls.
It must be noted that Rawls thinks of primary social goods as embodying one of the two
conceptions of equality, and there is another, more fundamental one. Rawls writes;
“some
writers have distinguished between equality as it is invoked in connection with the
distribution of certain goods, some of which will almost certainly give higher status or
prestige to those who are more favoured and equally as it applies to the respect which
is
owed to persons irrespective of their social position. Equality of the first kind is defined
by the second principle of justice (difference principle) which regulates the structure of
organisations and distributive shares so that social cooperation is both efficient and fair.
But equality of the second kind is fundamental”. 49The later is defined by the principle
of
justice whereby each person is to have an equal right to the most basic liberty
compatible
with a similar liberty for others. Rawls further emphasises that the natural basis of
equality explains its deeper significance and it is defined by such natural duties as that
of
mutual respect, which is owed to human beings as moral persons.
46 Pulin B Nayak “On Equality and Distributive Justice”, Economic and Political Weekly,
Annual Number,
March 1991.
47 A Theory of Justice, John Rawls, Oxford University Press, 1972.
48 A Theory of Justice,P.100.
49 Ibid, p/511.
7
The two conceptions of equality proposed by Rawls together make a case for the
elimination of substantial inequalities, but they would not lead to elimination of all
inequalities. Indeed the difference principle admits of inequalities to the extent that the
well being of the worst off member can be ensured to be maximised.
Amartya Sen in a incisive piece, “Equality of what” 50criticises Rawls , on the ground
that the notion of Primary goods, is “Fetishist”. “Rawls takes primary goods as the
embodiment of advantages, rather than taking advantages to be a relationship between
persons and goods.” Utilitarianism or more particularly welfarism does not have this
fetishism, since utilities are reflections of one type of relation between persons and
goods. For example, income and wealth are not valued under utilitarianism as physical
units, but in terms of their capacity to create human happiness or to satisfy human
desires. Even if utility is not thought to be the right focus for the person-goods
relationship, to have an entirely goods oriented framework provides a peculiar way of
judging advantages.
Futher, Sen emphasises that the primary goods approach seems to take little note of
the
diversity of human beings.51 In the context of assessing utilitarian equality, it was
argued
that if people were fundamentally similar in terms of utility functions, then the utitlitarian
concerns with maximising the sum total of utilities would push us simultaneously also in
the direction of equality of utility levels. Thus utilitarianism could be rendered vastly
more attractive if people really were similar. A corresponding remark can be made about
the Rawlsian difference principle. If people were basically very similar then an index of
primary goods might be quite a good way of judging advantage. But, in fact, people
seem
to have very different needs varying with health, longevity, climatic conditions, location,
work conditions, temperament and even body size (affecting food and clothing
requirements). So what is involved is not merely ignoring a few hard cases, but
overlooking very widespread and real differences. Judging advantage purely in terms of
primary goods leads to partially blind morality.
1.2. Libertarian Perspective.
Libertarian perspective on equality has been articulated in the most forceful manner by
F.A.Hayek,52 Friedman, 53Nozick 54and Letwin55 amongst others. F.A.Hayek, in his
substantial work “the constitution of liberty” emphatically states, that as a statement of
fact it is just not true that all men are born equal. We may continue to use this hallowed
phrase to express the ideal that legally and morally all men ought to be treated alike.
But
if we want to understand what this ideal of equality can or should mean, the first
requirements is that we free ourselves from the belief in factual equality. From this he
went on to argue that if we treat equally, all individuals, who are unequal, the result must
50 A Companion to Contemporary Political Philosophy, op cit f.n. 6.
51 Ibid.
52 constitution of Liberty , Routeledge and Kegan Paul, London, (1960)
53 Capitalism and Freeom, Milton Friedman, Chicago University Press, (1960)
54 Anarchy State and Utopia by R.Nozick, Basil Blackwell, Oxford (1974)
55 Against Equality, Mc Millan London (1983)
8
be inequality in their actual position.56 Therefore the only way to place them in an equal
position would be to treat them differently. Hayek therefore goes on to conclude that
equality before the law and material equality amongst individuals are in necessary
conflict with each other, and we can achieve either the one or the other, but not both at
the same time. Since equality before the law is regarded as a necessary prerequisite of
a
free society, this would automatically result in material inequality.
Hayek further argues that the boundless variety of human nature, the wide range of
differences, in individual capacities and potentialities is one of the most distinctive facts
about the human species. Its evolution has made it probably the most variable amongst
all
kinds of creatures. I has been well said that biology, with variability as its cornerstone,
confers on every human individual a unique set of attributes which give him a dignity he
could not otherwise possess. All this goes on to suggest that the quest for perfect
equality
in individual circumstances is bound to prove fruitless.
It is one thing to acknowledge that in-equality is a consequences of the natural order,
but
it is quite another to make a case for non intervention. Hayek declares that a demand
for
equality is the professed motive of most of those who desire to impose upon society a
preconceived pattern of distribution. Our objection is against all attempts to impress
upon
society a deliberately chosen pattern of distribution, whether it be an order of equality or
of inequality. Essentially the same kind of view is held by other libertarians, such as
Friedman, Nozick and Letwin.
Letwin for example argues that any egalitarian policy would necessarily be internally
contradictory.57 That is, if a government were to equalise any one material dimension of
life, such as income, wealth, consumption, or work effort, it would necessarily and
inevitably create inequality in one or more of he other dimensions. Suppose for example
government sets out to equalise pay by assuring each worker the same wage rate per
hour
of work done. This would imply that if workers were allowed freedom to choose the
number of hours of work per annum, then some would earn more than others per
annum.
Suppose on the other hand that the government decrees to pay the same amount to
each
worker annually and if different workers worked different number of hours per year,
because of ill health, work stoppage, or whatever reason, then their hourly wages would
be unequal . Further, if they worked different number of years during their lives, owing to
differences in health, opportunity, or other objective conditions, then their lifetime
incomes would be unequal. Thus any rule imposing equality on pay per hour, year of life
would necessarily impose inequality on pay realised during any other interval of time.
And this is not all. Suppose that each worker were paid the same annual wage. This will
not tell us anything about the persons, expenditure, savings and investment etc. With
different saving propensities, equal annual pay may even within one lifetime produce
remarkable inequality of wealth. Further if inheritance is permitted then inequality of
wealth and income may considerably intensify over time. Most importantly, individuals
would in general, respond in different ways to perform risky activities than would involve
56 Constitution of Liberty, (1960) p. 87.
57 Against Equality,By William Letwin (1983) Mc Millan London.
9
greater disutility. If individuals were forced to perform these activities, in a regime of
uniform pay, then this would , in general entail differences in individual well being. Thus
if a government were to ensure equality with respect to some variable then individuals
will in fact end up differences with regard to some other variable or variables.
While it is not necessary to over-emphasise the point that complete equality is
impossible to achieve, it is worth noting that libertarians usually take the position that it
is undesirable. The argument is that an equal world is inimical to growth and
incentives58.
Hayek writes, “The rapid economic growth that we have come to expect seems in a
large
measure to be a result of this inequality and to be impossible without it. Progress at
such
a fast rate cannot proceed on a uniform front but must take place in echelon fashion,
with
some far ahead of the rest.”59 After all, knowledge is a vital part of the process of
progress and knowledge and its benefits can spread only gradually and the ambitions of
the many will always be determined by what is as yet accessible only to the few. In a
similar context, Hayek contends that new things often become available to the greater
part of the people only because for some time they have been the luxuries of the few.
It may however be noted that the libertarian thinkers such as Hayek and Friedman who
had recognised the difficulty of ensuring equality of individual circumstance have
invariably at the same time argued for the elimination of moral or political inequality.
Most of the relevant discussion of this issue has therefore centred on equality of
opportunity and equality before the law, among other related notions. It is presumed that
each of these notions of equality goes towards enhancing individual freedom. The
principle of equality of opportunity ensures that every person has an equal chance to do
what he or she wishes and has the capacity for. There is a fundamental presumption
here
that inequalities must be tolerated if they result from differences of personal effort and
merit and not as the result of different opportunities. This is to be contrasted with the
notion of equality of outcome, or equality of results which would require action by the
state to correct free market outcomes. Harry Jhonsom ( 1975) has observed, “to be
consistent with both the principle of individual freedom and personal responsibility and
the requirements of efficient economic organisation, policy should concentrate on
providing equality of opportunity rather than equality of measured income ex post
results.
Equality before law is equally important and necessary requirement for libertarian
thinkers. The problem, however is that that in order to ensure any meaningful
application
of the above two principles, one must ensure a substantial measure of equality in
individual circumstance, particularly economic equality. It does not need to be
overstressed that a rich man has a great advantage over a poor man when he is
involved
in the courts of law. Since one cannot ensure complete equality in individual
circumstances one would have to conclude that equality in societal rules, viz, equality of
opportunity and equality before the law can only be strictly valid as a slogan.
1.3. Marxian Radicalism.
58 P.B.Nayak, On Equality and Distributive Justice, op cit f.n. 2.
59 F.A.Hayek, constitution of Liberty, p.42.
10
It is a matter of considerable interest and importance that Marx was clear in his
recognition of the impossibility of ensuring complete equality in individual
circumstances. But he was not merely questioning the practicability of this goal of
equality; he was in fact not even willing to acknowledge this as an ideal worth striving
for. Since Marx was fundamentally against oppression in any form one would have
expected him to argue for an egalitarian world. But in fact there are no explicit
espousals of the notion of equality in Marx’s writings. In the writings of both Marx and
Engels there are statements to the effect that equality is fundamentally a bourgeois
idea,
having no place in the statement of working class demands or objectives. It is for this
reason that Heller (1988) has observed that “Egalitarianism has no bitterer enemy than
Marx himself”60.
Marx presupposes a society wherein “ the instrument of labour are common property
and the total labour is cooperatively regulated, and where the proceeds of labour belong
undiminished with equal right to all members of society. Marx does not conceal his
preference for the notion of the abolition of all class distinctions as being the more
relevant notion as compared to the objective of the elimination of all social and political
inequality.
According to Marx, in the first phase of the communist system, “the right of the
producers is proportional to the labour they supply, the equality consists in the fact that
measurement is made with an equal standard labour. Yet because one man is superior
to
another physically or mentally and so supplies more labour at the same time, or can
labour for a longer time, this “equal right is an unequal right for inequal labour.”61 Thus
distribution in the first phase of communism will inevitably be an unequal distribution,
and will be so precisely because it is a distribution according to equal right. He goes on
to
say, one worker is married, another not; one has more children than another and so on
and so forth. Thus, with an equal performance of labour, and hence an equal share in
the
social consumption fund, one will in fact receive more than another , one will be richer
than another, and so on. To avoid all these defects, right instead of being equal would
have to be unequal.62
After the first phase of communist society is over the principle of equal right to labour
would give place to a system where labour not only becomes a source of livelihood but
life’s principal need. Marx goes on to say, “in a higher phase of communist society, after
the enslaving subordination of the individual to the division of labour, and therewith also
the antithesis between mental and physical labour, has vanished; after labour has
become
not only a means of life but life’s prime want; after the productive forces have also
increased with the all round development of the individual and all the springs of
cooperative wealth flow more abundantly- only then can the narrow horizon of
bourgeois
right be crossed in its entirety and society inscribes on its banners: “from each
according
60 Agnes Heller, Labour and Human Needs in a society fo Associated Producers in Tom
Bottomore (ed)
Interpretation of Marx, Basil Blackwell, Oxford 1988.
61 Karl Marx “Critque of Gotha Programme, in selected works by Karl marx and F
Engels, Progress
Publishers, Moscow 1975.
62 Ibid.
11
to his ability to each according to his needs.”63 Marx conceptualises the higher phase
of
communist society as a world of plenty where each person is allowed to consume as
per
his needs and contribute to the national cake to the best of his ability or capability.
According to him even the higher phase of communist society is not a world that is
characterised by equality in individual circumstances. In fact precisely the opposite is
the
case. Human beings are regarded as unique and separate individuals and an
environment
is provided where each person gives of his best and is allowed to partake of the social
cake to the extent of his needs. All the means of production are socially owned and the
question of distribution in the sense of private appropriation of income or wealth
amongst
individuals simply does not arise. Thus equality of status is established by doing away
with the notion of private ownership of holdings altogether.
Thus it would be seen that while Marx is indifferent to the elimination of all social and
political inequality, he is for abolition of class distinctions, which for him is of
fundamental importance. It is when the class distinctions are eliminated that social and
political inequality arising from them would disappear of itself. Thus while Marx was not
interested in pursuing the goal of equality in individual circumstance he was at the same
time careful to emphasise the importance of equality in the sense of eliminating all class
distinctions. He says that with the abolition of classes in socialist society all social and
political inequality arising from them would disappear. Implicit in this idea is his belief
that even though the rewards of the producers are not going to be exactly equal, income
differentials are not likely to be great because society will fulfill such social needs as
education and health care and the education from the social product, for these needs
grow
considerably in comparison with present day society and it grows in proportion as the
new society develops.
1.4. Various strands of Socialist thinkers : Fabians and Social Democrats.
It is bit interesting to note that the way the concept of equality has developed and come
to be understood in the democratic world today, the socialist thinkers and writers of the
past century and a half are among the strongest proponents of equality . Marxists have
always taken a drastic redistribution for granted. The socialist thinkers though less
radical in their approach, have advocated the redistribution of income and wealth by one
device or another. This has been for them the central issue of public policy and to avoid
this was to avoid all issues.64 It may not be possible or even appropriate to touch on
the
views on equality in diverse strands of socialist writings in view of the relevance of the
topic. Therefore we shall have a brief look on the views of the Fabians , and social
democrats.
These were a small groups of intellectuals, inheritors of the philosophical traditions of
Bentham and Mill. They were active and resourceful paphleteers and wrote on all
manner of social, political and economic issues. They shared a common conviction of
the
necessity of the state to intervene to take charge of the commanding heights of the
economy and to actively participate in the provision of education, health and other merit
63 Ibid.
64 P.B.Nayak, op cit f.n. 6.
12
goods. The original Fabian thinkers like Webb and Shaw, all shared Marx’s moral
outrage at the evils of capitalism, particularly as a system that engenders abject poverty,
inhuman working conditions, and stark inequalities of income, wealth and social status.
They were all convinced that the institution of private property was the principal, if not
the sole cause of the malaise, yet paradoxically, most of them were not straight enemies
of the established order and in fact were uncomfortable with the Marxian language of
class war and revolutions. Most of them did not share Marx’s belief that capitalism must
inevitably collapse though they were careful to acknowledge that the system is prone to
periodic slumps. They in fact were struck by its spectacular long run growth and saw no
reason to doubt that it would continue to reap the benefits of successive rounds of
technological innovations.
Socialism for most of these thinkers meant nationalisation, municipalisation and
government regulation of industry. Shaw, however, extolled the virtues of individual
freedom and competition, and believed these to be as important as the freedom of
speech
or the freedom of the press. By the 1930s they came to accept the necessity of mixed
economy. R.H.Tawney, in his classic work, “Equality”65 made a forceful presentation of
his equalitarian ideology. His concern was with fundamental equalities before the law,
the removal of collectively imposed social and economic inequalities, and the
equalisation of opportunities for all to secure certain basic goods and services. He
emphasised the crucial role of education to make children “capable of freedom and
more
capable of fulfilling their personal differences”,66 and make them communicate with
each
other at an equal level. He believed that it was the individuality in each person that
ought
to be emphasised and encouraged, “without regard to the vulgar irrelevancies of class
and income”. Offering one of the most perceptive critiques of the British class system,
Tawney lamented that the twin pillars of inequality, viz, inherited wealth and public
goods, that stood in the way of ensuring equality of opportunity were Britain’s hereditary
curse, and the source of most of its afflictions. Tawney made a powerful case for
tailoring
economic and social organisations to establish institutions to meet common needs,
such
as education, which would be a source of common enlightenment and common
enjoyment.
As such a strong case for social justice was made out by Tawney, and this was the
central
issue to the hardcore thinking of Fabian and Social democrats. However, they could not
extricate themselves from allowing the primacy of private ownership of the means of
production to continue. This led Schumpeter to argue that they were the kind of
socialists
who believed in the productive success of capitalism while they deplored its distributive
consequences.67
2. Common Grounds of Distributive Justice.
The above discussion brings us into a position where we can draw some conclusions.
First of all it is clear from the above that almost all thinkers from liberals to libertarians,
65 R.H.Tawney, Equality, Unwin London (1964)
66 Ibid.
67 J.A.Schumpeter, Capitalism, Socialism and Democracy, Allen and Unwin, London
(1976)
13
and Marxists to social democrats agree on the point that equality of individual
circumstances is an impossibility. While Rawls makes a substantial case for reducing
inequalities, and his difference principle allows maximum advantage to the worst off
members of consistent with some inequality still remaining. He concedes that if
inequalities benefit everybody by drawing out socially useful talents and energies, then
they would be acceptable to all. Libertarians on the other hand are clear in their minds
that equality in individual circumstances is not even desirable, for it would thwart
incentives and growth. They do talk about equality of opportunity and equality before
law, but equality in the sense commonly understood is clearly undesirable for them. The
argument is that an equal world is inimical to growth and incentives. The rapid economic
advance that we have come to expect seems in a large measure to be a result of … the
unequal circumstances. Marx’s view on equality it turns out, that he is rather indifferent
towards the idea of equality of individual circumstances, in the sense of equal
distribution
of commodities and income. He would rather prefer to eliminate the class distinctions,
so
that oppression and exploitation may be eliminated and all social and political inequality
arising from them would disappear by itself. In the first phase of communism he
envisages inequality emerging from the equal right to the labour, but in the final stage of
communism he envisaged a world where equality in the sense of distribution of gods or
income would cease to have meaning. Social democrats and the Fabians are in favour
of
substantial measure of equality but they are not in favour of doing away with basic
framework of free market capitalism, believing that some form of inequality is not only
desirable for the purpose of long term growth, but also is part of the natural order of
things.
Secondly almost all the thinkers make out a case for ensuring justice,(though as has
been
noted everybody will have a different conception of justice) and etch out some kind of
an
arrangements for redistribution of resources. In Rawlsian scheme of things the
conception
of justice ensures that the dispensation is designed in such a way that improves the
least
advantaged members of society. In fact Rawlsian justice is geared exclusively towards
improving the lot of worst off members of society. Rawls talks of ensuring equality of
opportunity, because it ensures, that fate of the people is determined by their choices
and
not by their circumstances. “My aim is to regulate inequalities that affect people’s life
chances and not the inequalities that arise from the people’s life choices”, which are
individual’s own responsibility. Rawls seeks to ensure a scheme of things what Prof
Dworkin calls “endowment insensitive and ambition sensitive”68 dispensation. A system
is just if it takes care for the redressal of undeserved inequalities and since inequalities
of
birth are undeserved these inequalities are somehow to be compensated for.
Libertarian thinkers like Hayek and Friedman have recognised the difficulty of ensuring
equality of individual circumstances, but at the same time they have argued for
elimination of moral and political inequality. They have centred their discussion on
ensuring “Equality of opportunity and equality before law”. The presupposition is that
this ensures justice and enhances individual freedom. The principle of Equality of
Opportunity is that every person has an equal chance to do what he wishes and has the
capacity to do. For Marx, a just system is the one, wherein all class distinctions have
been
68 Taking Rights Seriously, Ronald Dworkin, Harvard University Press, 1997
14
abolished. It is not necessarily a system where equality prevails for “Equality” is
fundamentally a bourgeois idea, having no place in the statement of working class
demands and objectives. Since State is an instrument, used by dominant class to
suppress
and exploit the dependant class, the state in the hands of Proletariate shall be the
medium
to be used against the bourgeois and other reactionary and counter revolutionary forces
and affecting a radical redistribution of resources.
Social Democrats are in favour of ensuring a system (A Just one), wherein substantial
measure of equality is guaranteed without doing away with the basic framework of
market capitalism. R.H Tawney 69 is in favour of substantial redistribution and in
particular public provision for education, for all children to make them capable of
freedom and more capable of fulfilling their personal differences and enlargement of
personal liberties. Through the discovery by each individual of his own and his
neighbour’s endowment. Amartya Sen emphasises this aspect in his advocacy of “Basic
Capability Equality”. He says that “individual claims are not to be assessed in terms of
the resources or primary goods, persons respectively hold, but in terms of the freedom
they enjoy to choose between different ways of living that they can have reason to
value”
Public action to improve nutritional intake, life expectancy and reduce morbidity and
infant mortality so as to enhance individuals capabilities has received froceful support in
the writings of Amartya Sen.70
Under Indian Constitution, what is laid down in terms of equality is a twin concept, i.e.
equality before law and equal protection of laws, while the former ensures equal status
to
everybody, from a prince to a pauper, the later concept, is aimed at achieving
substantial
equality by classifying the advantaged and disadvantaged and provide the
disadvantaged
ones with protective discrimination which has been specifically taken up in article 15
and 16. This idea of equality under Indian Constitution, thus, emphasizes on the
protective aspect of equality which has been the prime concern of most of the
philosophers we have talked about above.
This discussion brings us to the idea of Distributive Justice. Whatever the differences of
opinions amongst the philosophers of various hues, on the conception of justice and
equality, they would all suggest some or the other kind of distributive mechanism to
shape the society in the mould of their philosophy. In fact the idea of distributive justice
is not something new. Aristotle himself talked about distributive justice. According to
him justice is of two types-complete justice and particular justice. Particular justice, is
further subdivided by him into Distributive justice and Corrective Justice. Distributive
Justice consists in proper allocation of reward to each person according to his worth
and
desert. It thus looks beyond equality in purely formal sense. Its central concern is to
redress the bias of contingecies in the direction of equality. In a democratic world it is
taken for granted that policies for the redress of severe social and economic
disadvantages are in themselves desirable. Such policies of distributive justice aim at
different sectors of society and at the widest possible base. Either we call such policies
as protective discrimination, benign discrimination or preferential policies, they are the
69 “Equality” by R.H.Tawney,Unwin, London (1931).
70 Justice, Means versus Freedom, Philosophy and Public affairs, 19: 111-21.
15
means for achieving the ideals of distributive justice. Justifications for affirmative action
lies in the needs either to remove the grossly unjust inequalities in the system or to raise
particular sections of the society to the level of human existence and assure them their
due dignity. It is these justifications for affirmative action, that we now turn to in the
next section.
3. Affirmative Action Programmes : Jurisprudential Basis.
The fact that Constitution of India specifically provides for affirmative action
programmes in an elaborate manner or that the Supreme Court of United States of
America has held “Affirmative action Programmes” Constitutionally sanctioned, has not
put paid to the controversies dogging this issue. In fact the issue raises questions of
great
importance to the legal theory and philosophy and as such are required to be looked
into
a bit more fully and systematically. It has been seen in the introduction that the policies
of compensatory discrimination raise a host of questions and arguments. Here an
attempt
shall be be made to look into some of the more important questions and arguments and
analyse their theoritical implications. Though the attempt shall be to cover such
questions
or controversies rather exhaustively, however there is no claim on our part that there are
no other questions which have important theoritical implications.
3.1 Merit Argument.
Meritorian Principle dictates that social goods should be allotted on the basis of one’s
merit on ability, whether natural or acquired. Leaving aside the general intricacies in the
application of the principle, in such matters as admission to institutions of higher
education or appointment to the state services it will require that the candidates are
selected on the basis of their individual merit, i.e., their ability in terms of achievement of
certain grades or marks in an objective test-generally a test of intelligence plus
knowledge- held for that purpose. Supporters of this principle claim that it assures best
justice in so far as it allocates the rewards or goods on the basis of an objective criterion
having nothing to do with such personal characteristic of an individual as his birth, race,
colour, sex, caste, etc.71 They say that it also satisfies the justice precept of “treat like
cases alike and diffferent cases differently” in so far as it provides a criterion of
immediate relevance to the good to be distributed. This principle assures the selection
of
the ablest persons from amongst a large number for the limited goods or opportunities
available for distribution. It also assures a strong society and its overall progress in so
far
as it provides incentive for hard work and the development of superior mental and
physical capacities.
It appears to be a bit weighty argument but a closer examination reveals its
weaknesses.
The notion of merit itself is subjective. What is merit after all ? Merit has no fixed or
definite meaning free from variations. It is nothing but a criterion to achieve some
predetermined
social objective or value or to satisfy certain perceived social need. It does
not control the objective value, or need, but is controlled by them.72 Thus the merit
must
71 See V.C. Mishra, Bar Council of India Review, Vol XVII, New Delhi 1990.
72 M.P.Singh, Reservation Crisis in India (Ed) V.C.Mishra, Universal Book Traders, New
Delhi, 1991.
16
vary according to the variations in the social objective, value, or need for achievement
or
satisfaction. For example, in a society suffering from under population due to long term
war or any other reason, production of more children may be a merit and parent may be
rewarded for producing more children because the society needs an increased growth
of
population. Production of more than one or two children may, however, become a
demerit in an overpopulated and underdeveloped society. Similarly, high grades or
percentage of marks in educational examinations may be a merit for teaching
assignment
because the object is to have intellectually sound persons, but for a police or defence
job
where predominantly physically strong men are needed, physical strength and not the
grades in examinations may be the merit.
According to Prof. Dworkin, there is no combination of abilities and skills and traits that
constitutes “merit” in the abstract; if quick hands count as “merit” in the case of a
prospective surgeon, this is because quick hands will enable him to serve the public
better
and for no other reason. If a black skin will, as a matter of regrettable fact, enable
another doctor to do a different medical job better, then that black skin is by the same
token “merit”as well.73 Prof . Dworkin does not say that merit is unimportant , the thrust
of his argument is that merit itself can be defined in such a way as to make way for
particular kinds of persons in view of social demands and necessities. It is indeed
determined in terms of perceived social objectives, values or needs and is bound to
change with the changes in the latter.
One may take an example to illustrate the point in another manner. Suppose for
example
there are three boy claimants for one ticket of a cricket match show. To whom out of
these the ticket should go on the basis of merit ? To one who has the highest score in
the
last examination, or the one who has demonstrated exceptional potentiality to obtain
better scores in future, or the one who does not fall in either of these two categories but
has demonstrated immense interest in cricket ? An answer to these questions would
depend on what our ultimate objective are. If we want to encourage talent and effort by
rewarding it, the boy with highest marks should get the ticket, if we want to encourage
the effort and potential , the second boy must get the ticket. And if we want to
encourage
sports, particularly cricket, the ticket must go the third boy.
Two general conclusions may be drawn from this discussion. First, since merit is
dependent upon the value, goal, or the objective to be achieved, a society or the
dominant
group in a society may set such objectives or goals for which the members of that
groups
are most suitable and thus use the apparently objective looking criterion of merit to
exclude other groups from the social good. For example, a warrior class or race in
power
may say that they need physically strong and well built men in all walks of public life
and administration and accordingly all positions will be filled on the basis of physical
strength or prowess. On the face of it physical strength appears to be an objective
criterion, but in fact it may result in constant and uniform exclusion of the under
nourished and weak.
73 Bakke’s Case : Are Quotas Unfair, in “A Matter of Principle”, Ronald Dworkin,
Harvard University
Press,1985.
17
Secondly, since the merit is determined for serving the perceived social needs or values
of the day, satisfaction of such needs is the end and merit is simply a means to achieve
that end. For example, efficiency in public administration may be an end and to achieve
that end standards that may ensure such efficiency may be set as merit. A society may
find that having met the ordinary common needs of the community, it needs highly
intelligent and sophisticated doctors, engineers or lawyers to meet the special needs. To
achieve that end it may decide that to these courses persons must be admitted solely
on
the basis of their intelligence measured through a pre-admission test or on the basis of
marks or grades achieved in the previous school examination or both.
Conversely, a society may find that it does not need as much intelligent and
sophisticated
doctors, engineers or lawyers, as it needs the ones who can serve the day to day
ordinary
needs of the rural and tribal people and may accordingly decide that persons to these
courses should not be admitted on the basis of intelligence alone, but also on the basis
of
their suitability to serve the rural and tribal people. And if the society finds that persons
with urban or affluent background are not suitable for the job because of their
unwillingness to serve the rural and tribal people as well as their attitude towards them,
it
may decide that persons with rural or tribal or poor background only will be admitted to
these courses or that preference will be given to them. Thus while in the first case
intelligence is the merit for becoming a doctor, engineer or lawyer, in the second rural or
tribal poor background acquires priority over intelligence and becomes merit.
One may quote a similar kind of an example. Suppose, for instance, a country is not
interested in high class cloth, but it wants that everyone must be clad even if the cloth is
coarse. In such a situation the enterpreneurs who can produce cheap cloth even if it is
coarse should have priority, if a question of granting a textile industry license arises,
over
those who have highly sophisticated machinery and technical know-how to produce fine
quality cloth beyond the common men’s reach. Thus the capacity to produce coarse but
cheap cloth becomes a merit as against the capacity to produce high quality
cloth.These
examples should leave no doubt that merit varies with the social needs. It changes with
the context and is simply a means to achieve certain ends.
A third point which requires to be noted about merit argument is that what we call merit
or talent is not necessarily something which proves the superiority of one individual over
another in terms of effort or dilligence. It depends on a number of factors which one
cannot influence in spite of one’s best efforts and lie beyond one’s control. Researches
have established that intelligence is mainly determined by heredity-specifically that
about
80 percent of variance in IQ scores is genetically determined. Prof. Eysenck says that
“talent, merit, ability, are largely innate factors. In addition to genetic factors, talent is
also conditioned by environmental factors and their interaction with genetic factors.74
This is clear from Jensen’s assertion that something between one half and three fourths
of
the average IQ difference between American Negroes and whites is attributable to
genetic factors, and the remainder to environmental and their interaction with the
genetic
factors. Even where heredity is the same as in identical twins, if the social environment
is
allowed to vary, remarkable differences sometimes occur. Finally IQ is also dependent
74 Quoted in V.C. Mishra’s Reservation Crisis in India, Universal Book Traders, New
Delhi, 1991.
18
upon motivation and motivation to a great extent depends upon social environment with
shapes future hopes, expectations and prospects.
As such if merit depends upon a number of factors beyond one’s control, is it not as
much
suspect as a race, caste, religion, sex or colour for the purposes of classification of
allocation of social goods ? We do not suggest that merit must outrightly be rejected as
criterion of social justice. But those who argue that merit should be the sole and
exclusive
criterion should not forget to take into account the factors that constitute it. If we cannot
provide uniform conditions of living and development to all, we have no reason to prefer
the advantaged over the disadvantaged. Such arrangements is prima facie unjust in so
far
as it ensures perpetual advancement of the former and condemnation of the latter.
3.2. Rights Argument.
Articulation of the Rights Argument poses some difficulties. It is generally argued that
affirmative action in favour of one group is discriminatory against others denied of the
same benefits and that is itself denial of equality which is the right of every individual as
an individual and not as a member of any group and therefore cannot be denied to him
simply because he is labelled as a member of an advanced group etc. because another
individual is labelled as belonging to a backward group. Every citizen has a
constitutional
right that he is not made to suffer disadvantages, at least in the competition for any
public benefit, because the race or religion or sect or region or other natural or artificial
group to which he is a member is the object of prejudice or contempt. Prof. Dworkin
blasts out the argument. Commenting on Bakke’s claim that he was denied a seat in a
medical school at Davis only because he was white and that he did not chose to be
born
as white, he says “ It is true that blacks or jews do not choose to be blacks or jews. But
it
is also true that those who score low in aptitude or admissions tests do not choose their
levels of intelligence.”75 Certainly, he would have been accepted if he were the black.
But
it is also true, and in exactly the same sense, that he would have been accepted if he
had
been more intelligent or made a better impression in his interview, or, in the case of
other
schools, if he had been younger when he decided to become a doctor. And so he
concludes that Allan Bakke is being sacrificed because of his race only in a very
artificial sense because of his level of intelligence, since he would have been accepted
if
he were more clever than he is. In both cases he is being excluded not by prejudice but
because of a rational calculation about the socially most beneficial use of limited
resources for medical education.
Gregory Stanton takes the view that equality may have three but related concepts (I)
Formal individual equality,(ii)Weighted individual equality or substantial individual
equality and (iii)proportional group equality..76 While formal individual equality is a
synonym of mathmatical equality in the sense that each man is to count for one
irrespective of his characteristics and weighted equality contemplates weightage to be
given to the individual handicaps, proportional group equality means equality among
75 Bakke’s Case : Are quotas unfair, in “A Matter of Principle”, By Ronald Dworkin,
Harvard University
Press, 1985.
76 As Quoted in V.C.Mishra’s Reservation Crisis in India, Universal BookTraders, New
Delhi, 1991.
19
groups, i.e, if a group of people is shown to be under-represented or is systematically
unable to compete on a formally equal basis with other groups for a job or educational
opportunity or any other highly valued social good, arrangements by way of reservation
of quota can be made to equalise the distribution of benefits between groups. Here the
principle of equality among equals applies not to individuals but to groups. The
individual has been deprived of certain advantages because he belongs to a group and
therefore for benefiting the individuals within that group some weightage has to be
attached to the entire group. And since within the group also there may be more
claimants than the benefits to be distributed, members of that group are allowed to
compete among themselves.
With this view of Gregory Stanton , if one looks at the Constitution of India, one will find
that the concept of group equality in so far as it speaks of special provisions for women
and children and for any socially and educationally backward classes of citizens or for
the
scheduled castes and scheduled tribes, reservations of appointments or posts in favour
of
any backward class of citizens, promotion of the educational and economic interest of
the
weaker sections of the people, and consideration of the claims of the members of
scheduled castes and scheduled tribes, in the making of appointments to services and
posts. In view of these express provisions no one can assert that the right to equality is
always an individual right.
Even in the absence of these provisions the concept of group equality should be
acceptable to both as a matter of practice as well as of principle. In practice, we see that
most legislations, particularly in the area of social welfare, take into account groups and
not the individual. For example, a labour legislation safeguarding the interest of
industrial
workers does not take into account the non-industrial worker, though he may be more in
need of such safeguards than the former. The legislation proceeds on the assumption
that
the industrial workers as a class or group must be protected from the oppression of a
class
of employers, i.e., the industrialists. Similarly special treatment to veterans and their
children in matters of job or admission to educational institutions is given as members of
a group regardless of the disadvantage suffered by individuals. Special provisions are
similarly made on the ground of group characteristics or handicaps.
Prof Andre Betielle, in an incisive article on “Distributive Justice and Institutional well
being”77 articulates a critique of “group rights” argument. He argues that at a deeper
level
the caste system has changed fundamentally. The moral claims of castes over their
individual members have weakened at all levels of society, and especially in the urban
middle class where the battle over benign discrimination is being fought. It will be safe
to
say that no caste today has the moral authority to enforce on its middle class members
any of its traditional sanctions. Having freed themselves from the moral authority of their
caste, such individuals are now able to use it instrumentally for economic and political
advantages. In the traditional order , the village priest or the village barber, or the village
scavenger had a moral right to claim a share of the social product in the name of caste
because each of them was bound by the moral authority of the caste of which he was a
member. That moral authority has been, for good or evil, shattered for ever. On what
77 Economic and Political Weekly, Samiksha Publications Bombay, March 1991.
20
grounds can individuals now claim distributive shares for themselves in the name of
their
caste after having repudiated their moral obligations to it ?
He further argues that it is difficult to see how the idea that castes and communities
have rights to proportionate shares in public employment can be made compatible with
the working of a modern society committed to economic develoment and liberal
democracy. It is true that caste continues to operate in many spheres of social life; but it
does not do so any longer as a matter of right. The continued existence of caste is one
thing; its legitimacy is a different thing altogether. The attempt to invest the caste system
with legitimacy by claiming that its constituent unites have rights and entitlements is
bound to be defeated in the end; but in the meantime it can cause enormous harm to
society and its institutions. The persistent use of the language of rights in the public
debate for and against reservations is bound to lead to an increase in the
consciousness of
caste, and in that way to defeat the basic objective of affirmative action which is to
reduce and not increase caste consciousness. All parties to the debate say that they
wish
to dismantle the structure of caste. But caste is not a material edifice that can be
physically dismantled and destroyed. It exists above all in the consciousness of people-
in
their deep sense of divisions and separation on the one hand and of rank and inequality
on the other; How can we exorcise caste from public mind by deepening the sense in
society that castes are entitled to their separate shares as a matter of right.
Prof. M.P. Singh78 attempts an explanation by saying that certain castes have been
consistently excluded for thousands of years from the goods and opportunities which
they
would have certainly desired simply because they belonged to that caste. It is true that
no
classifications based on birth should ordinarily be supported by as the things today
certain castes and backwardness are identical. For example, “scheduled castes and
tribes
are descriptive of backwardness, and nothing else. For thousands of years they have
been
treated as untouchables and denied the right of association with other members of the
socie.ty. They have suffered all kinds of indignities and disabilities not as individuals but
as membes of a group or caste and that entitles them to special treatment as members
of
a group without violence to the right of equality of the nonmembers. The individual’s
right to equality in this situation is given due recognition in so far as the members of the
group can compete among themselves for the limited goods available for distribution or
allocation.
This leaves us in a peculiar situation, if the caste criterion is used for providing
protective
discrimination the caste divisions are enhanced and identity based on class or caste
lines
is underlined. Further on the other hand if caste identities are overlooked in public
employment and for admission in educational institutions of higher learning , they are
deprived off an opportunity to overcome their disabilities caused due to exploitation and
deprivations of hundreds of years. The solution appears to be lying somewhere in
between-- the golden mean. Where vast disparities either in Indian situations or in
U.S.A., they are required to be redressed. Flexibility is the essence in the design and
application of policies to redress disparities that have arisen because of many causes.
78 Jurisprudential Basis of Reservations, in Bar Council of India Review,Vol XVII, New
Delhi, 1990.
21
3.3.Efficiency Argument.
It is implicit in the idea of benign discriminations that a less meritorious person is
preferred to another who is more meritorious. The entry of a less meritorious shall
naturally affect the efficiency of the institutional system. Institutions of our socio
economic life like, courts , hospitals, banks, universities, laboratories, posts and
telegraph
etc, are the vehicles which negotiate the arduous path of the community towards a
better,
more systematic and healthy life. They are useful not just to the people to whom they
provide employment, but for the public at large and the society as a whole. Indeed the
institutions shape harness and channelise the collective energies of a people in their
quest
for a better tomorrow. And as it is said, “Rome was not built in a day” , Institutions do
not spring up all of a sudden, they take generations and centuries in their evolution
passing through ups and downs, accumulating experiences of generations, their trials
and
travails and acquiring the shape useful for the social organism. The social utility of
public institutions has to be judged not just by the criterion of employment but a whole
range of criteria among which employment cannot be the most important. If for the
purpose of redressing grievances of the past, we tend to undermine the efficiency of the
public institutions, we would be doing unimaginable harm to the generations to come. It
was probably for this reason that when the framers of Indian Constitution provided for
benign discrimination, they also took care of the efficiency of public institutions and laid
down a rider providing that the claims of members of the scheduled castes and
scheduled
tribes shall be taken into consideration, consistently with the efficiency of administration
in the making of appointments to services and posts in connection with the affairs of the
union or the state.79 It is therefore argued that the efficiency of public institutions is of
paramount importance
Though efficiency of public institutions is undoubtedly an important value insofar as it
assures greater production and better services, yet its importance has to be compared
with
and ultimately set against the significance of such other values as integration,
prevention
of discrimination or eradication of stark social injustices. Through that exercise we might
find that for us integration and rectification of socially harmful deprivations and
injustices are as, if not more, pressing needs as efficiency. That was the demonstrable
perception of the constitution makers of the Indian reality and social needs which have
not yet materially changed. Even if we assume the paramountcy or primacy of
efficiency,
the connection between the existing test for entry into the services and the efficiency of
administration has not been empirically established.
According to Marc Galanter,80 “the translation of lower academic accomplishment into
inefficiency in the administration is difficult to trace. It is not clear how well academic
performance correlates with administrative talent. Nor is it clear that differences in the
level of such talents are directly reflected in efficiency or inefficiency of administration…
…..In part the higher scores of others may reflect cultural disadvantages which are
irrelevant to the business in hand; in part, the lower scores of beneficiaries may reflect a
79 See B.Shiva Rao, The Framing of Indian constitution, Vol.III N.M.Tripathi, Bombay,
1967.
80 Law and Society in Modern India, By Marc Galanter, Oxford University Press, 1989.
22
remediable lack of polish and experience rather than lack of native ability.”81 In the
words of Justice Krishna Aiyar of Indian Supreme Court, “The very orientation of our
selection process is distroted and those like the candidates from the scheduled castes
and
scheduled tribes who, from their birth, have a traumatic understanding of agrestic India
have, in one sense, more capability than those who have lived under affluent
circumstances and are callous to the human lot of the sorrowing masses. Elitists, whose
sympathies with the masses have dried up are, from the standards of the Indian people,
least suitable to run government and least meritorious to handle state business, if we
envision a service state in which the millions are the consumers….. .. Sensitised heart
and
a vibrant head, tuned to the tears of the people, will speedily quicken the development
needs of the country and a sincere dedication and intellectual integrity… .not degrees of
Oxford or Cambridge, Harvard or Standford or similar Indian Institutions are the major
components of merit or suitability.”82
The thrust of the whole argument is that the concept of efficiency should be related to
our developmental needs and irrelevance or inadequacy of the existing test system to
determine efficiency should be exposed.
3.4. Balkanisation Argument.
It has been noted above that benign discrimination underlines class and caste
differences
and enhances the social divisions, which are already acute in Indian socio-political
system. A similar kind of an argument has been made in United States of America, that
affirmative programmes are aimed to achieve a racially conscious society divided into
racial and ethnic groups, each entitled as a group to some proportionate share of
resources, careers or opportunities.83 In India due to the history of partition and
resulting
massacre of around one million people, the argument that benign discrimination tends
to
divide the people revives the history of tragedies of partition. The communal virus which
started with Ramsay Mc Donald award culminated in the partition of the subcontinent
and generation of issues which remain unresolved to this day. Even the history of the
benign discrimination has not been a smooth one. The extension of reservations first for
the Scheduled Castes and scheduled tribes and then to Other Backward Classses,
(OBC)
has already caused so much of heartburn and has led to ample amount of
recriminations.
And now the forwards too are demanding reservations. Demands of Christians and
Muslims for reservations, though subdued at the moment, have started being made.
That
turns the whole concept of benign discrimination into a political tool, seeking to
perpetuate the power of paternalistic Government, which would rather dole out,
reservations sops and divide the people than encourage people to stand on their own
feet
and compete in a world of excellence. All this leads to an acute kind of anxiety about the
integrity of the country.
81 Ibid.
82 Quoted by Prof M.P.Singh, in His Jurisprudential Basis of Reservations, op cit f.n. 47.
83 Ronald Dworkin, Bakke’s Case : Are quotas Unfair, in “A Matter of Principle”, Mass
Harvard University
Press, Cambridge, 1985.
23
The proponents of benign discriminations respond to this type of argument by terming it
as a displaced argument trying to discredit the affirmative action programme, whose
moral and philosophical justifications leave little room for doubt, which sustain and
transcend the constitutional text and policy. Their argument is that failure at the
implementation front should not be the reason to discard the policy itself. Prof Dworkin
has sought to articulate the response to the Balkanisation argument in American
context.
He dispels the fear that affirmative action programme are designed to produce
balkanised
America, divided into racial and ethnic sub nations. They use strong measures to uplift
the weaker and deprived or else they will fail, but their ultimate goal is to lessen and not
to increase the importance of race in American social and professional life.
Prof. Dworkin writes, “American society is currently a racially conscious society; this is
the inevitable and evident consequence of a history of slavery, repression and
prejudice.
Black men and women, boys and girls, are not free to choose for themselves in what
roles
or as members of which social group- others will characterise them. They are black, and
no other feature of personality or allegiance or ambition will so thoroughly influence how
they will be perceived and treated by others, and the range and character of the lives
that
will be open to them. The tiny number of black doctors and other professionals is both a
consequence and a continuing cause of American racial consciousness, one link is a
long
and self fueling chain reaction. Affirmative action programmes use racially explicit
creiteria because immediate goal is to increase the number of members of certain races
in
these professions. But their long term goal is to reduce the degree to which American
society is overall a racially conscious society.”84
According to Prof. Dworkin, the benign discrimination policies in America rests on two
judgments. The first is a judgement of social theory: that the United States will continue
to be pervaded by racial divisions mainly the prerogative of members of the white race,
while others feel themselves systematically excluded from a professional and social
elite.
The second is calculation of a strategy: that increasing the number of blacks who are at
work in the professions will , in the long run reduce the sense of frustration and injustice
and racial self consciousness in the black community to the point at which blacks may
begin to think of themselves as individuals who can succeed like others through talent
and initiative. At that future point the consequences of nonracial admissions
programmes,
whatever these consequences might be, could be accepted with no sense of racial
barriers
and injustice.
This argument perfectly fits in Indian situation as well. The Affirmative Action
Programmes in the form of State advantages, here in India, more elaborate, varied and
specific as they are, have been designed to end the serfdom of a whole section of the
population in which it has fallen due to socio-religious and politico-economic reasons.
The policy is intended to help the historically disadvantaged groups to remedy the
handicaps of prior discrimination impeding the access of classes of people to public
administration, in a society where there exists forward and backward, higher and lower
social groups. The first step in this process is to bring the lower and backward social
groups to the level of forward or higher social group. Unless all social groups are
brought
84 Ronald Dworkin, op cit, f.n. 52.
24
to an equal cultural plane, social intercourse amongst the groups will be an impossibility.
Employment and particularly the government employment promote social and economic
advancement and provisions relating to protective discrimination precisely aim at
achieving this goal. It must be noted in this context that article 15 (4) and 16 (4)
specifically refer to social and educational advancement of disadvantaged groups.
However economic advancement naturally accompany the social and educational
advancement. The expression economically backward or economic advancement has
purposely not been used to avoid the inclusion of majority of rural population which
continues to groan under poverty conditions. Under Indian Constitution, the protective
discrimination programme has been designed specifically to remedy social
disadvantages
by way of distribution of state advantages. It must, however, be ensured that a fortunate
few do not monopolize its benefits for ever. A constant endeavour has to be made that
the
theoretical justifications are matched by effective implementation.
XXXXXXXXXXXX
25
CHAPTER - III
Indian Panorama of Equality and Justice : Ancient and Modern.
Times are not static, they change and so changes the life of a nation. Socio-political
order
of any system in particular is dynamic, live and organic and changes introduced from
within or outside initiate a chain reaction in the socio-political life of a system and have
cascading effect on the social scenario. Social mores and ideals change from time to
time
in the backdrop of emerging social crises which create new problems and alter the
complexion of the old ones. Indian social system from the beginning of its inception has
been witness to the changes of multiple dimensions. Beginning with the Varna
Vyavastha, the Indian social system boiled down to caste structured system which has
taken such deep roots that the education, economic development , political awareness,
legal institutions, constitutionalism and even modernisation could not not have much
impact on it, so much so that even the Protective Discrimination system, when it was
introduced under the Constitution of India had to be based on the discredited version of
Caste System. It is due to this that we say that the roots of the present lie deeply buried
in our past history.
The present set of policies too have more than 100 years history. Initially the policy was
introduced by the colonial administration to divide and rule the local people and
perpetuate their authority. Apparently a mechanism to maintain the balance of power
amongst different sections of society, though the stated objective was to redress the
inequality in public services. In the post independence period, however, the set of
policies
of protective discrimination were adopted as a measure of social Engineering and for
the
upliftment of weaker and deprived sections of our society for the purpose of redressing
the ills of the past and ushering in an egalitarian social order.
This chapter is an attempt to trace the long journey of an ancient system to the present
model of administering equality and justice. The ancient past has not certainly been a
blameless one, but his also does not justify Henry Maine’s dismissive remark that much
of Ancient India’s wisdom consisted of ‘dotages of Brahmanical superstitions’.85 This
kind of an attitude towards ancient Indian traditions in law and justice represents the
attempts made by the colonial administration to discredit the ideological foundations of
Hindu hegemony of ideas. It would be interesting to learn how the so called
disadvantaged groups in Indian society willingly accepted their position as part of the
Dharmic order of things . India’s genius for accomodation can only be understood
against the backdrop of this Dharmic order which holistically encompassed all of the
society. This social system was not certainly the rigidified hierarchical structure as it has
been presented to be, on the contrary, it was comparatively a dynamic order
unparalleled
85 S.S.Dhavan, Indian Jurisprudence and the theory of State in ancient India, Mussorie,
National academy
of Administration, Printed Lectures, 1962.
26
in the contemporary societies and since it still retains a lot of socio-political validity, it
would be appropriate to understand the basics of it. The point is , how and whether the
inequalities were inherent in this system as has been made out to be ?Whether the
system
was inimical to individual liberty ? If yes what remedies were thought about the
propounders of that system or they were simply insensitive about it ? If not how and why
the deterioration set in reducing a whole section of population to thraldom and
worthlessness and thus necessitating a programme of preferential treatment ? We will
start by having a brief sketch of ancient India’s organising principles of socio-political
governance (I), trying to understand the peculiar setting of Varna system and its
rationale (II), which got distorted into a hierarchical caste structure, the burden of which
is still carried by the deprived and exploited sections of the social system (III), and
which ultimately became the base of the present protective discrimination programme
under elaborate provisions of equality and justice under Indian Constitution(IV). The
present model, elaborate, complex and bewildering as it is , due to the structural
complexities, it would not be possible to cover the whole range of issues that form the
part of the present discourse on Protective Discrimination. As such a few arguments,
which have been debated in other politico-legal systems (especially U.S) as well, shall
be
taken up for the purpose of putting the things in perspective.
1. Context of Ancient India’s Socio-political governance.
Before we look at the ancient Indian paradigm of equality and justice, we must
understand the fact, bewildering as it may appear to a western mind, that the organising
principles of Ancient India’s socio-political arena were not rights but the duties. Hindu
constitutional writers have approached the problem of socio-political organisation from
quite different point of view. They usually describe not the rights of citizens but the
duties of the state; the former are to be inferred from the later. Similarly they discuss the
duties of citizens from which we are to infer the extent of the control, the state could
exercise over the citizen. Every individual being, realising the five kinds of debts he
owes
towards the system has to concentrate on his duties, without caring for the likely
outcome. That’s how Geeta puts it, “therefore perform your duty effeciently without
attachement, because it is only by actions without attachment that a man can attain the
supreme”.86
Another important point which is peculiar to a western mind and is required to be noted
for a proper understanding of India’s jurisprudential tradition is that there is no essential
conflict between individual and society or the state. The western tradition separates the
civic and political life of the citizen from that of his moral and spiritual life and defines
his rights as against the state which is assumed to be hostile to individual liberty. Hindu
tradition considers political duties of the citizens as part of his general duties (Dharma)
and assumes that there is no primordial conflict between the state and citizen
necessisating a clear cut definition of rights and obligations of both.87 The very
existence
of the state is for the purpose of promoting all sided progress of the citizen. State as
such
is indispensable for the progress and happiness of the individual. Individual on his part
86 Shrimadbhagwadgeeta, 2/47.
87 The Cultural Polity of Hindus, Dr. Nandkishore Acharya, Richa Publishers, Bikaner,
India.(1969)
27
having the sense of obligation due to the five fold debt, 88he owed to the system as a
whole could sacrifice himself for a bigger purpose. State as such for the Hindu system is
not a necessary evil but a necessary benefactor. The conception of individual rights
therefore could not be a major problem for political and jurisprudential thinking. The
proponents of Hindu system had no presuppositions of the possibility of the suppression
of the individual and therefore no pretentions were made to secure the rights of an
individual.
With this essential complementarity of the individual and the state under Hindu system,
when we approach the conception of equality of citizens, the individual citizen is to be
understood and defined from a holistic perspective and from the perspective of
individuals goal in life. The purpose of the individual as well as that of the state is to take
care of the personality of the individual and ensure its all round development . As such
the ultimate goal of both the individual and the state, so to say the Dharma of both
entitities is “Yato Abhyudayh Nihshreyasah sa Dharmah”, i.e. something which ensures,
complete,absolute and best of development is Dharma and therefore ensuring such an
environment wherein the character, and the potential of the individual finds their fullest
development is the duty of the state and as such the right of the individual . Such an
individual whose personality character and potential are developed in a balanced
manner
shall in turn help in the evolution of the societal and state system and contribute his bit
in
the overall growth of a united entity, call it state or society.
Individual personality in the Hindu scheme of things is not considered to be
unidimensional or unilinear. It is complex of various interacting factors, having many
layers of consciousness. At the physical level, the basic equality of the matter
constituting
the human body is recognised. “ One who considers everybody (including the every
creature of the living world) like his own self is the true knowledgeable person”.89 At
this level human body is nothing but a vibrating pulsating mass of neurons. As such
there
is no difference between A and B. What distinguishes the two are the means of
experiencing the outer world. This is the level of consciousness. At the other level, i.e.
the level of physical being, no two individuals are similar in any way whatsoever. Basic
nature, circumstances, the character and the potential which an individual is born with,
can never be the same for any two individuals . This diversity of natural propensities is
to
be taken into consideration by the system providing for balanced development of any
human individual .
State system has to recognise that no two individuals are similar in their natural
propensities and therefore a uniform regimented system would not help every individual
in achieving his fullest growth. No one individual is either a paragon of virtues or simply
a bundle of evils. On the contrary every individual person posseses a unique
combination of virtues and vices. The system cannot simply think of providing similar
88 According to Manusmriti (73/69), five kinds of debts, an individual owes to the social
system. They are
Dev Rin,(Debt of Gods) Rishi Rin,(Debts of the teachers and sages) Pitr Rin,(Debt
towards ones ancestors)
Manusya Rin (Debt towards ones companions with whom one grows into a fully
developed unit of the
social system) and Bhut Rin (Debt towards the environment).
89 Atmavat Sarvabhuteshu yah pashyati sah Panditah, (Hitopadesh, Vishnu Sharma)
28
educational facilities, allowing every potential of every individual to develop, rather the
system has to take care, and devise the whole educational and cultural set up in such a
way that the vicious propensities of the individual are curbed and the virtuous
propensities are allowed and helped to flower fully. Aristotelian concept of applying
equal laws amongst equals is no different from this. And the concept of equal protection
of laws, under Indian Constitution speaks in the same vien.
Psychological researches establish it that our mind is conditioned at a very early young
age. It works on the basis of some established beliefs and set convictions. India’s
philosophic traditions aim at conditioning of human mind at an early age in such a way
that man grows with a sense of gratitude and obligations towards all those forces which
nurture his elements and psychological personality. He is not allowed to develop the
sense of conflict or dichotomy towards the system which he considers as
complementary
to his personhood rather than contradictory to it. It is for this reason that the complexion
and texture of the philosophy of rights in Indian context is a bit different from that of the
west and that has got to be understood for the proper understanding of India’s ancient
jurisprudential thinking, which somehow impinges on the thought process of policy
makers, legsilators, judges and academicians, even today.
2. Varna System (the Classificatory Principle)
It may be noted that the purpose of any legal system anywhere in the world and for that
purpose of Dharma in particular in India has been to control and regulate human life
without unduly intervening in his private life and natural liberties. There are two sides of
this control or regulation, social and individual. Every individual has a certain definite
place or status in the society and the duty he owes to the social system are based on
this
status. This is called “Varna Dharma”. It represents the social side of Dharma and the
individual side is represented by the Ashrama Vyavastha, which relates to various
stages
of individuals life, young age, middle age and or old age etc. 90Looking at the social
side of the individual, individual is not an absolute entity. His ultimate ambition can be
realised only in a well regulated social system wherein he has a definite place and a
role
to play.
It is on the basis of his natural potential and his role in the social system that he
becomes
part or member of a particular group or community within the social system. Some one
who is intellectually very sound and is adapted in policy issues for social regulation, is
known as Brahmin. One who is physically powerful and has leadership qualities,,
capable
of protecting the oppressed and the weak becomes the one who supports such
measures
and implements those policies with the help of sanctions he possesses and is known as
Kshatriya. Those who are efficient in economic planning and execution, they either
themselves or with the help of the labour perform their duties for re-inforcement ,
perpetuation and development of social system and contribute towards economic well
being of the social organism are known as Vaishyas. And those who find their fulfillment
and expression in labour and services of others are known as Shudra. This four-fold
90 Dr. S. Radhkrishnan, Eastern Religion and Western Thought, Rajpal and Sons New
Delhi, 1971.
29
division of labour in Ancient India was known as Varna system contemplated for the
wellbeing and evolution of socio-political system.
This Varna System was originally an arrangement for the distribution of functions in
society, just as much as class in Europe, but the principle on which this distribution was
based in India was peculiar to this country…… A Brahmin was a Brahmin not by mere
birth, but because he discharged the duty of preserving the spiritual and intellectual
elevation of the race, and he had to cultivate the spiritual temperament and acquire the
spiritual training which could alone qualify him for the task. The Kshatriya was kshatriya
not merely because he was the son of warriors and princes, but because he discharged
the
duty of protecting the country and preserving the high courage and manhood of the
nation, and he had to cultivate the princely temperament and acquire the strong and
lofty
Samurai training which alone fitted him for his duties. So it was with Vaishyas whose
function was to amass wealth for the race and the Sudra who discharged the humbler
duties of service without which the other Varnas could not perform their share of labour
for the common good. There was no essential in-equality between a brahmin and a
sudra
since both of them were the necessary part of the single “Virata Purus” (cosmic spirit).
Etymologically speaking the word Varna is derived from the original sanskrit word
“Vri” which means and stands for chosing or selecting a thing. Thus the word “Varna”
implies the occupation chosen or selected by an individual in accordance with his
nature,
disposition, genius and temperament91. The first use of the term “Varna” is found in
Rigvedic texts in which the mankind has been divided into two . “Vijanihyarnye cha
dasyavoh”92 i.e. men are of two kinds “Arya” i.e. noble and “Anarya” the idiot or
Shudra.93
Prof. P.V. Kane, after carefully studying the ancient scriptures, concludes that in the
earliest times about which literary record exists, there were only two Varnas, the Aryas
and their opponents, Dasyus or dasas, who were later subjugated and given a position
subservient to Aryas94. But later owing to cultural advance, division of labour arose and
numerous arts and crafts developed and they were in the process of contributing to the
complexity of the system by creating numerous subcastes based upon occupations95.
The
most prominent and known use of Varna is found in Yajurveda, wherein four types of
Varnas have been accepted.
Brahmanasya mukhamaseet Bahu Rajanyah Kritah
Uru tadasya yadvaishyah padabhyam shudro ajayat.96
A rough and precise translation of the verse is that the Brahmin is born out of the mouth,
the kshatriya from the arms; the vaishya from the stomach and the shurdra is born from
the feet of the Lord. Manu talks about the same in the following manner.
91 Rigvedadi Bhashya Bhumika, Varnashrama Dharma Vishay, Chaukhamba
Publishers Varanasi, 1975.
92 Rigveda, Purush Sukta.
93 Ibid.
94 P.V. Kane, History of Dharmashastras, {1968} Vol – I Bhandarkar Research Institute
Poona.
95 Ibid.
96 Yajurveda.
30
Lokanam tu vivardhyartham mukhbahurupadtah
Brahmanasya Kshatriyam vaishyam shudram cha nikhartayat
i.e. the Lord has created four Varnas, Brahmin; Kshatriya, vaishya and Shudra for the
upkeep and betterment of society corresponding to the four limbs of the Lord. That
means that four Varna system has been bestowed on the world by the Lord, the creator.
The point worth noticing is that doubt about this theory of Brahmanas having taken birth
from the mouth of the Brahma etc. arise when we take the words at their face value i.e.
when we do the literal interpretation of the text. However the fact is that this is figurative
or rhetorical or symbolical representation that Brahmana has been born from the mouth
or the head of the Brahma. This may be illustrated by way of an example. Rigveda
states
that the King has been made out of eight elements i.e. Indra, vayu, yama, surya, agni,
varuna, chandra, kubera 97etc. Evidently the king cannot be produced by eight
elements,
simply because the temporal body of human beings have been constituted of five
elements i.e. earth; water; fire sky and air. The Eight elements said to be the
constituting
elements of the king are the eight virtues which are expected to be found/inhered in a
king and as such this implies the virtues of the king.
Manu too talks about four varnas in the varna vyavastha based on Vedas and the point
to
be noted in this context is that the system is based on Karma (deeds)and not birth.
Sarvasyaasya tu sargasya guptyartham sa mahadyutih
Bahurupajjaanam Prithakkarmapyakalpayat .98
This implies that the Almighty God has created four varnas for the security, order and
prosperity of this earth, corresponding to the four limbs of the lord and the Karma of a
particular varna shall be entitled for the same. The term varna itself establishes that this
system is based on karma and not birth. Etymological meaning of the word Varna is
given in Nirukta “Varno vrinoteh”99 meaning thereby that something which is
chosen/selected by the person according to his karma is varna. Commenting on this
Swami Dayananda Saraswati writes .
“Varno vrinoteriti niruktapramanyad varniya varitumarhah,
Gunkamani cha drishtwa yathayogyam vriyante ye te varnah.”100
i.e. the right given to an individual after observing his qualities and dispositions is the
varna. Further the etymological meaning of the different varnas explain the karma
{duties} of a particular varna and it is by adopting the duties of a particular varna. The
etymological explanation or the derivation of the word Brahmana is “ Brahmana Veden
97 Manusmriti, 1/87
98 Ibid, 1/89
99 Nirukta 2/1/4
100 Rigvedadi Bhashya Bhumika, Swami Dayananda Saraswati, Chaukhamba
Prakashan Varanasi, 1975
31
Parmeshwarasya upasanen cha sah Vartmano vidyadi uttamayuktah Purushah” 101i.e.
one who devotes oneself in the studies and thought of the Vedas and the God, and
bears a
good moral character is Brahmana. Manu too states the same thing. According to him to
study and teach Vedas, to do and getting done the yagnas, and to give and takes
alms/donations are the six duties/deeds of the Brahmana.102
The word Kshatriya is deived from the original word kshat and has been explained
etymologically in Nirukta “ Kshadati Rakshti Janan kshatrah” 103i.e. one who protects
public from violence, invasion or loss etc. is kshatriya. Manu explains the duties/deeds
of
the Kshatriya
Prajanam Rakshanam Danamijyadhymeva cha
Vishayeshva prasavittashcha kshatrisya samasatah.104
i.e. one who devotes oneself for the thorough studies of Vedas, performs agnihotra
yagnas, gives alms to worthy people, assures protection, the public at large, not allured
by worldly vices and has control over himself, is benign, noble and humble is the
kshatriya in the real sense of the term. Here the doubt may arise due to the use of the
word “eeya” in the sense of an offspring, whether Manu treats birth as the determiner of
the varna of an individual? An approved answer to the doubt is that the relation of an
offspring is established not only by birth but by transfer of knowledge or virtues too. For
example there are supposed to be no wife/offspring of surya, varuna etc., but still due to
the relation of cause and effect and the transfer of knowledge the son of Aditi is called
Aditya, the wife of the sun is called Suryaa and so on. 105
The term Vaishya too is indicative of the varna system based on merit and deeds and
not
by birth. Yo yatra tatra vyavaharvidyasu pravishati shah vaishyah vidyakushalah jano
va” 106i.e. one who engages in different types of business relations and is different in
different pragmatic relations is vaishya. In this connection Manu states
Pashunam Rakshanam Danamijyadhayayanmev cha
Vanikpatham kusidam cha vaishyasya Krishimeva cha 107.
i.e. the protection and betterment of animals like cow, investing money for progress of
knowledge, performing yagnas like agnihotra etc., studies of Vedas and other
scriptures,
doing all kinds of business, not taking interest more than 1.25 percent and not less than
0.25 percent ,not accepting even a penny on receipt of double the original money. The
101 Ashtadhyayi, 4/2/59
102 Manusmriti, 1/88
103 For similar views see Etareya Brahmana 8/2
104 Manusmriti, 13/1/53
105 Ashtadhyayi, 2/1/19
106 Vasudha Smriti, for similar views see Tandya Brahman.
107 Manusmriti 1/90
32
less interest he takes the more he progresses in terms of money, his dynasty will never
suffer from penury and birth of an idiot offspring.108
Like Brahmin, kshatriya, and vaishya, shudra too is indicative of a varna system based
on merit and deeds. “Shudrah shochniyah shodhyam sthitimapanno va sevayam
sadhur
avidyagun sahito manushya va”109 i.e. Shudra is that person who can never obtain the
position of uprightness due to his ignorance and the one who is looked after by a
swamin
i.e. the owner. Further “Ashato va Esha Sambhuto yat Shudrah”110 i.e. one who suffers
lowliness due to his ignorance and idiocy and the one who can only serve his master is
called shudra. Writing on the social status of a shudra Manu writes
Ekmeva tu shudrasya prabhuh karma samadishat
Etevameva varnanam shushrushamanayuya .111
i.e. one who is devoid of knowledge and cannot be taught by teaching process but is
efficient in terms of physical robustness, the Lord has instructed him to serve the three
upper varnas of Brahmin, kshatriya and vaishyas without any ill will. This may create a
sense of inferiority and worthlessness of an individual who is shudra. But in fact there is
nothing in the varna system that may warrant this assumption. Manu has used the word
Shuchi while explaining the duties of shudras, which stands for purity of mind and body.
And this is also self evident that a person who serves others can never be treated as
lowly,
inferior or worthless.Justice Rama Jois explains “ the Superiority or inferiority of an
individual by birth in any one of these classes appear to have not been in existence. For
instance Valmiki and Vyas, the authors of two great epics, the Ramayana and
Mahabharata, who are regarded as the greatest poets and writers and philosophers of
the
country and who are held in the highest esteem down to this day by all sections of
society, belonged to the fourth and second Varna respectively”112 Further it must be
noted that shudra is not by birth but one who cannot become Dwija or twice born by
studies of Vedas is shudra or Ekjanma i.e. one who is one time born. He is treated as
shudra since he is not twice born by knowledge; the shudra is also called by the
synonym
Ekjanmah.
It is worth noting that castes were not hereditary, and this demonstrated by a verse in
Rigveda where a poet exclaims “ I am a reciter of hymns, my father is a physician and
my
mother grinds corn with stones”.113 In another verse in Rigveda a poet asks the God
Indra; “Oh Indra! Fond of soma, would you make me the protector of the people, or
would you make me a king, would you make me a sage that has drunk soma, would you
impart me endless wealth.” 114This shows that the same man could be a sage, or a
nobleman or a kind, depending upon his desire and activities.
108 Satyartha Prakash, Swami Dayananda Saraswati, Chaukhamba Prakashan,
Varanasi, 1968.
109 Unadi Sutra Path, 2/19
110 Taitriya Brahmana, 3/2/39
111 Manusmriti, 1/91
112 M.Rama Jois, (1984) Legal and Constitutional History of India, vol. I N.M.Tripathi
Bombay.
113 Rigveda, IX, 112.3
114 Rigveda III, 44.5
33
The most authentic description of varna system and the duties of different varnas is
supposed to have been given in Mansumriti. The provisions of Manusmriti make it clear
that varna system used to structure/design social system according to ones deeds and
not
by ones birth as such. The best illustration/argument to support this proposition is that
Manu had discussed at large the duties of various varnas. Had he treated varna to have
been determined by birth, there was no question of discussing the merits and demerits
or
duties and rights of various varnas since the same had been determined by their birth
only and the deeds of an individual would not have affected his place/status in the social
system. If an individual born in a Brahmin family does something which does not suit his
place/status in he society and is still held to be a Brahmin, the same undesirable deed
would not affect his station in life at a later stage. The account of acts prohibited by law,
the duties of various varnas specified and other provisions of Manusmriti amply
demonstrate that Manu treats the merit and demerits of an individual according to his
deeds and not by birth alone. If the merit of an individual is accepted by birth alone the
entire Karma system of Manu will collapse. He treats every individual a shudra by birth.
“Janmana jayate Sudrah” i.e. ever body is a sudra by birth and his merit or station in life
is determined by his acts and deeds. The Manusmriti is suffused with various examples
of
it.
Shudro Brahmanatameti Brahmanshchaiti Shudratam
Kshatriyajjatmevam tuVidyadvaishyattathaiva cha .115
The above sloka implies that a Brahmin, may turn into a shudra and shudra into
Brahmin, depending on ones deeds and actions. A person born in a Brahmin family may
remain a Brahmin only if his deeds are like those of a Brahmin, otherwise he lapses into
shudrahood. Similarly an individual born in a shudra family remains a shudra only if his
deeds are those of a debauched person. On the contrary if his deeds are like that of a
Brahmin or kshatriya he gains the varna suiting to his karma; deeds and disposition.
According to Manu one who does not follow his duties turns into a shudra. He writes
Yondheetya dwijo vedamanyatra kurute shramam
Sa jeevannev shudratwamashu gachhati sanwayah .116
Roughly the above sloka implies that a Brahmin who instead of studying Vedas invests
his energies in the study of other things attains the shudrahood alive alongwith his
family. The question may arise why an entire family should lapse into shudrahood for
the deeds of a single person in the family ? The reason is that one who does not study
Vedas gradually looses his erudite and lapses into shudrahood and once the head of
the
family is shudra how can he teach/transfer the erudite to his dependants and therefore
they too lapse into shudrahood. The point to be noted in this connection is that the word
veda here has been used as a synonym of knowledge . Not only this, but one who
keeps
company of shudra i.e. who is not knowledgeable, too becomes shudra. Manu writes
Uttamanuttamangamangachhanheenanheenasch varjayan
115 Manusmriti, 10/65
116 Manusmriti 10/66
34
Brahmanah Shreshthatameti Pratyavayen Shudratam.117
i.e. a Brahmin by keeping in touch with meritorious and knowledgeable people and by
leaving the company of shudras and debauched, keeps on attaining merit after merit.
One
who acts contrary to it lapses into shudrahood. A noticeable point in this connection is
that the word Brahmin here, has not been used for the person born in a brahmin family
but for the one who attains Brahminhood by his deeds and dispositions. The
terminology
of Manusmriti is such that the symbolical words are to be interpreted in their right
context and meanings given accordingly. The way a Brahmin looses his Brahminhood
by
not doing the deeds suiting to his Varna, similarly a person born in a shudra family may
attain Brahminhood by doing the suitable deeds.
Shuchirutkrishta shushruvurmtaduvaganah kritah
Brahmanadyashrayo Nityamutkrishtam jatimashnute118
i.e. a shudra of pious body and character serving the higher castes, if is soft spoken and
devoid of pride may attain Brahminhood or the Dwijanma i.e. twice born Varna .It was
because of this that Chokha Mela, the maratha pariah, became the revered teacher of a
Brahmin, who was proud of his caste purity. The chandala, (an outcaste who takes care
of the burning of died bodies) taught Shankaracharya 119for a Brahmin was revealed in
the body of the Pariah and in the Chandala there was the utter presence of the Lord
Shiva. There comes a story in Mahabharata, 120that an established Brahmin named
Kaushik gets an elaborate lecture from a butcher, “ You appear to have attained the
Brahminhood only in this birth for you are so full of pride, and are enmeshed in human
vices, therefore you are no better than a Sudra”.121
The above brief exposition of the provisions of Manusmriti and other scriptures makes it
clear that the varna system of the ancient period far from being birth based rigid system,
was based purely on ones deeds and was designed for the maintenance of law and
order
and progress of the system. The rigidity of the later period jati system was not at all
existing and everybody was free to raise or lower his station in life by his action and
deeds. The people were divided into four Varnas but the Varna system was designed for
the peace and progress of the people at large. The people were equal by birth and there
were available ample opportunities of social mobility horizontal as well as vertical.
It is commonly believed and alleged many times that the caste system has really
hampered the growth of a democratic system. Dr. Radhakrishnan, however considers
the
Varna System as perfectly democratic system. Firstly, because system believed in
perfect
equality at the spiritual level, (Atmavat Sarvabhuteshu……..) The system was based on
117 Manusmriti 4/45
118 Manusmriti 9/335
119 Shankaracharya, born in 8th century, was one of the greatest religious teachers of
India who revived the
Vedic Studies and established that Indian Culture is Vedic Culture and that an essential
unity exists in the
Indian masses from north to south and East to West.
120 One of the two all time great Epics of India, based on a story of Mahabharat War
supposed to have been
fought more than five thousands years back.
121 Mahabharat, Van parva, III/75-84.
35
the belief that everybody is the expression of the Supreme Lord and has a natural and
fundamental right to develop his person to the fullest extent. Secondly, it also
establishes
a system of responsibility and accountability. Individualism is not fulfilled by running
away from the limitations of responsibilities and accountability. The true individualism
lies in the willing acceptance of the social responsibilities tempered with propriety and
honesty. Thirdly this system also recognises that all functions have social utility but
economically speaking no particular function has any priority. Fourthly, it must be
understood that social justice is not a system of rights but a system of equal
opportunities. No democratic system would accept that all individuals in the state
system
should be alike. State is some kind of a machine, an organic system, different parts of
which have to perform different functions. What does equality under a democratic
system
implies is that every part of the system has a right to make his contribution and shall get
an opportunity of doing so . Last but not the least individual liberty under a democratic
system also implies the regulation of liberties. Under this system a proper balance of
spiritual, political and economic power rules out any kind of misuse of power of any
organ of the state system.
Under this fourfold division, everybody has to work according to his choice, potential
and propensity and has to achieve their fulfilment. A human individual is niether a single
cell like creature nor a machine which can be bought and deployed for performing a
particular task, according to the choice of the buyer. Human individual is in fact the
manifestation of the supreme, the cosmic spirit and what should he do should be
determined according to his inborn qualities.
3. Deterioration of Varna System into Rigid Caste System.
During the later years of vedic times and post vedic period the varna system started
loosing its shine and there started appearing cracks in the system. Though the varna
system during this period too remained deed based and there still was a bit of mobility
amongst castes wherein changing ones varna was still possible, however the mental
horizon of the people had started narrowing down. There was no prohibition of varna
marriages amongst three Dwija varnas. Shudras were placed at the lower station in
social
system but were not looked down upon. There certainly was no system of
untouchability,
rather the responsibility of looking after the welfare of the shudras shared by the three
Dwija Communities.
With the changing times, however, the rot started setting in. Now the offsprings of
Brahmins were started being identified with the specific tasks of Brahminhood and
offsprings of kshatriya for the tasks for kshatriyahood. The willingness to change ones
varna had started weakening. Though the mobility amongst different varnas was still
possible in theory; the instances of change from one to another varna had started
becoming rare. The varna system which was deed based hitherto, now started taking
the
shape wherein the birth was important in determining the status of an individual. The
offsprings of different varnas started inheriting the membership of the particular varna.
Brahmins were at the apex of social system due to their established status in society,
now
they fortified their position by interpreting the Vedas in their favour. The systemic flux
36
gave rise to Budhism and Jainism who attacked Brahminism by emphasising upon the
equality of birth and deed based varna system. Since kshatriya gave protection to these
Dharmas the status of kshatriyas in the social ladder recorded an improvement.
When Btuhdeh ism and Jainism too started showing the signs of decline, the
Brahmins once again raised their positions. Rigidity in marital relations and turning of
varna system into caste system was followed by formation of clusters of jatis{castes}
and
upjatis {sub-castes}. The predominance of rituals prohibited intercaste marriages.
Though anuloma, i.e. the marriage of a high caste male with the low caste female was
permissible, their offspring were looked down upon and were treated as crossbreeds
and
hybrids. 122The duties of different castes and subcastes had become determined and
at this
stage of social development appeared untouchability. The social status of shudras had
recorded a steep downfall. Brahmin made full use of their status and interpreted Vedas
and shastras in their own way distorting the right meanings of the terms.
The Manusmriti had established an ideal system of rules for the regulations of social
behaviours. But the essence of it had now been lost. The interpreters like kulluk Bhatt
wrongly interpreted the Vedas and Dharmashastras to serve their vested interests. Due
to
these interpretations the position of Brahmins in society had become fortified but then
status of shudras and women had been lowered considerably. The word Varna had now
become a dead letter and the varna system was now replaced by the caste system
which
was of a different genre altogether. There were mainly four Varnas initially, i.e.
Brahmin; kshatriya, vaishya, shudra, But now these were subdivided into various
subcastes. Intercaste marriages were prohibited altogether and marrying in ones own
community was made essential. Anuloma marriage were permitted, but for the offspring
of such marriages there was a different caste system. Like marriages, strict do’s and
donts
were prescribed in food relations too. Occupational structure of the social system now
had become completely based on inheritance. Administration and reins of power were
now completely in the hands of kshatriyas. Kshatriyas {Rajputs} accepted this version of
social system simply because it did fit in the protection of their immediate interest of
continuance of their tutelage. And since Brahmins were being protected by the
administration they once again came to dominate the scene. Religious rites had now
become ritually dominated. Upnayan {wearing of sacred thread} was now completely
prohibited for shudras. They were now banned from, entering into temples and places of
worships to offer their pujas etc. Study of Vedas too was banned for shudras. This
resulted into a kind of molopoly over vedic studies in the hands of Brahmins who
interpreted Vedas and shastras according to their whims and to serve their vested
interests. State administration has turned into inherited monarchies, as a result of which
the king started becoming lusturous, indignant, indulgent; weak and tyrants. The weak
and ignorant kings came to occupy the throne and head the administration.123 The
opportunists and weak-kneed elements filled in the layers of administration which
ultimately resulted in the weakening of state system which enabled foreign rulers to
invade loot and occupy the country at various points in history.
122 M.N.Sriniwas: Caste in Modern India, Asia Publishing House Bombay, 1962
123 L.P.Sharma, Ancient History of India, Calcutta, 1978.
37
According to Justice Ramajois “In the meandering course of our history the society got
divided into innumerable castes and subcastes. The evil of discrimination as high and
low among men on the basis of birth, hereditary avocations and other considerations
raised its head and the pernicious practice of untouchability with all its degrading
inlications came into existence”.124
The week-kneed executive and resulting chaotic administration attracted the marauding
invaders of medieval times and with the onslaught of invasions starting in 327 B.C. India
faced foreign armies, including the huns, Arabs, Turks, Afghanis, Persians, Mongols,
Portuguese, French, and British . India came under Muslim rule around 12th century
A.D.
for more than 600 years until the Britishers took over the power at the end of 18th
century. This affected the socio-economic and politico-cultural system in far reaching
manner. According to Dr. Sarvapalli Radhakrishnan,125 some of the early invaders like
Huns were very cruel and uncivilised and caused a lot of bloodshed in the process of
their
invasions. When such people and races started settling down permanently, and a
situation
developed wherein the locals were compelled to stay with them, it was then, that
marriage and social interaction were restricted and that resulted into coming up of caste
system. Who should belong to which varna, was very difficult to determine taking into
consideration the psychological propensities of different people. It was in such a
situation
that birth started being considered the basis of classifying different Varnas. Once this
system got established, it became rather an imperative to maintain the sanctity of the
descent by education or tradition.
With the decline of Mughals there started European incursions, another curse for the
already fractured socio-economic and politico-cultural Indian system. In the course of
time Britishers came to predominate the Indian scene. They were no reformers or
charityists. They were hard core businessmen and wanted to exploit the resources of
this
land for their own gain. As such the economic exploitation of the country continued and
the empoverishment of Indian subcontinent coincided with the industrial revolution of
Europe , with the Britain working as the engine of growth in European subcontinent.
Since the Britishers had only economic interests here, no attempt was made to reform
the
socio-cultural system of the country and the already existing social evils were used by
Britishers to perpetuate their exploitation. There were attempts from within Hindu
society to reform and rehabilitate the system. Swami Dayananda Saraswati in the late
19th century attempted to reform the system from within by removing social evils and
invigorating the system. He was basically a social reformer and the Shuddhi movement
started by him was intended for removing social evils from Hindu society. It also created
an undesirable crack in Hindu Muslim relations. Jyotiba Phule by establishing Prarthana
Samaj worked for the social upliftment of the deprived and underprivilieged sections of
society. Raja Ram-mohan Roy saw a close link between social and political progress
and
he perceived improvement in social conditions as essential for improvement in political
conditions of the country. He attacked idolatory, and through his scholarly research
established that idolatry was not sanctioned by Vedas and Upnishads. Secondly he tried
124 M.Ramajois, {1984} Legal and Constitutional History of India, Vol-I , N.M.Tripathi,
Bombay.
125 Eastern Religion and Western Thought, Rajpal And Sons, New Delhi, (1971)
38
to get the barbarous practice of Sati abolished. He took up the cause of women and
raised
the voice against the discriminatory and unjust treatment meted out to them and also
favoured widow remarriages.126
Before we move on to next section, it should be taken note of that the rigidity and
inflexibility which has come to mark India’s caste system characterised by inequality and
hierarchical nature, was not inherent in the traditional social pattern, but was later day
accretion due to may internal and external reasons. In the course of time it gradually
hardened into a rigid framework based upon heredity. Inevitably, it gave rise to gradation
and put a premium on snobbery. Thus came into being social hierarchy and stratification
resulting in perpetration of injustices by the so called on the lower castes. This
necessitated a programme for the reconstruction and transformation of a medieval
hierarchical society emphasising inequality, into a modern egalitarian society based on
individual achievement and equal opportunities for all regardless one’s caste race, or
religion. This was evidently the intent of India’s protective discrimination programme.
4. Post-Independence India : A New Beginning.
Proud of India’s rich and varied heritage, but pained at the prevailing social evils of
caste
system etc, the founding fathers of Indian Constitution were aware of the entrenched
and
cumulative nature of group inequalities and therefore constitutional policies were
designed to offset these entrenched discriminatory practices. Thus independent India
came to embrace equality as a cardinal value against the background of elaborate,
valued
and clearly perceived inequalities127. The result has been an array of programmes that
are
termed here as policy of Protective or compensatory Discrimination. In fact the
measures
for ensuring equal protection of laws involve the element of protection as well as that of
compensation or reparation to offset the systematic and cumulative deprivations
suffered
by lower castes in the past. These protective discrimination policies are authorised by
constitutional provisions, that permit departures from norms of equality, such as merit,
evenhandedness and indifference to ascriptive characteristics.128
These array of protective discrimination programmes can roughly be divided into three
broad categories. First are Reservations which allot or facilitate access to valued
positions
or resources; such as reservations in legislatures, including the reservations for
Scheduled
castes and scheduled tribes in Lok Sabha ( House of the People; the lower house of
Indian Parliament),129 reservations in government services and reservations in
educational institutions. Second type of protective measures are employed though less
frequently in land allotment, housing and other scarce resources like, scholarships,
grants
loans and health care etc. Third type of protective measures are specific kinds of action
plans for removal of untouchability, prohibition of forced labour etc. Interestingly few in
independent India, would voice the disagreement with the proposition that the
126 Verinder Grover; Political Thinkers of India, Deep & Deep Publications, New Delhi,
1998.
127 Marc Gallanter, Law and Society in Modern India, Oxford University Press, New
Delhi, 1990, P.185.
128 Ibid.
129 Indian Parliament is a Bicameral Legislature. Rajya Sabha is the upper chamber of
the Parliament
having 250 members elected indirectly for 6 years. Lok Sabha is the lower chamber,
consisting of 544
members elected directly for five years.
39
disadvantaged sections of the population deserve and need special help, there is no
public
defence for the caste system, everyone is against untouchability. However there have
been controversies galore on a number of issues who really deserve this help and how
long ? What kind of a help it should be and what is the efficacy and propriety of this
help ? Reservation in jobs and government services and in educational institutions has
been the focus of these controversies. We take these three types of reservations one by
one in this section and try to present the pros and cons of these protective measures.
4.1. Reservation in Legislative Bodies.
The constitution of India treats the scheduled castes and scheduled tribes in India with
special favour and affords them with some valuable safeguards. The scheduled castes
are
depressed sections of the Hindus who have suffered for long under social handicaps
and
thus need special protection and help for the amelioration of their social economic and
political conditions. Scheduled tribes also known as ab-origines, are those backward
sections of Indian population who still observe their tribal ways, their own peculiar
customs and cultural norms. The tribal people have remained backward because of the
fact that they live in inaccessible forests and hilly regions and have thus been cut off
from
the main currents of national life.130 These scheduled tribes people too need special
provisions for safeguarding their interests. The main problem concerning these people
is
that their socio-economic conditions be improved at such a pace and in such a way as
not
to disturbe suddenly their social organisation and way of living. The need is to evolve
ways and means to gradually adjust the tribal population to changed conditions and
integrate them slowly in general life of the country without undue and hasty disruption of
their way of living.
For the purpose of providing protection in terms of political representation, article 330 of
Indian Constitution provides that seats in proportions to the population of scheduled
castes and scheduled tribes in particular states are reserved in the Lok Sabha. The
states
which are predominantly tribal are excluded from the operation of article 330. Earlier
section 2 of 23rd amendement of the constitution 1969, excluded the operation of article
330 to the tribal areas of Nagaland , but the exclusion has now been extended in
respect
of the state of Meghalaya, Mizoram and Arunachal Pradesh by 31rst amendment Act as
these states are predominantly tribal in nature.131 Similarly under article 332, seats are
reserved in the legislative assemblies of the states in favour of scheduled castes and
scheduled tribes in proportion of their population in that particular state. Once again the
state of Meghalaya, Nagaland, Mizoram and Arunachal Pradesh are excluded from the
operation of article 332, simply because of the predominant tribal population in those
states. Article 331 and 333 does the same in favour of members of Anglo-Indian
Community.
It is obvious that reservations of seats in Lok Sabha and legislative assemblies of the
States in favour of scheduled castes and scheduled tribes is for the purpose of ensuring
presence of minimum number of representatives of scheduled castes and scheduled
tribes
130 M.P.Jain, Indian Constitutional law, Wadhwa and Co Nagpur, 1997.
131 V.N.Shukla, Constitutional law of India, Eastern Book Company Lucknow, 1990.
40
in the legislative bodies. As such if the members of said categories are able to secure
additional seats there shall not be any repugnancy to these provisions at all.132 The
claim
of eligibility for reserved seats does not exclude the claim for the general seat. It is an
additional claim obtainable by way of merit and work.
Elections to the reserved seats are held on the basis of single electoral roll and each
voter
in the reserved constituency is entitled to vote. There is no separate electorate. It is for
the
scheduled castes and scheduled tribes alone to elect their representatives133. Thus to
elect
a person belonging to such castes and tribes to a reserved seat, all the voters in the
constituency have a right to vote. This method has been adopted with a view to
discourage the differentiation of the scheduled castes or scheduled tribes from other
people and to gradually integrate them in the mainstream of national life.134
It may be noted that initially these reservations were provided for only 10 years from the
commencement of the Constitution under article 334. But this duration has been
extended continuously since then by 10 years each time. Now the period of reservations
in Lok Sabha and State legislative assemblies stands for 60 years from the
commencement of the constitution. 135 It is felt that the handicaps and disabilities
under
which these people live have not yet been removed and that they need this reservation
for
some time more so that their condition may be ameliorated and they may catch up with
the rest of the nation. The number of Lok Sabha seats reserved in a state of Union
territory for such castes and tribes is to bear as nearly as possible the same proportion
to
the total number of seats allotted to that state or Union Territory in the Lok Sabha as the
population of the scheduled castes and scheduled tribes in the concerned state or
Union
Territory bears to the total population of the state or the union territory. 136
The fact that reservation of seats for scheduled castes and scheduled tribes in the
legislatures is not on a permanent basis, but is at present provided for 10 years period
at
a time, shows that it is envisaged that the scheduled castes and scheduled tribes would
ultimately assimilate themselves fully in the political and national life of the country so
much so that there would be no need for any special safeguards for them and there
would be no need to draw a distinction between one citizen and another. Their condition
would improve so much that they would feel their interests secure without any kind of
reservations.
132 V.V.Giri v. D. Suri Dora, AIR 1959 SC 1318.
133 M.P.Jain, Indian Constitutional law, Wadhwa and Company Pub, Nagpur, 1997.
134 This has a long history, Mahatma Gandhi has undergone a long fast to protest
against the Ramsay Mc
Donald award, for separate electorate in 1932 resulting into Poona Pact, under which it
was agreed to have
joint electorate but reservations in legislative bodies. This particular provision was given
concrete shape in
the Government of India Act of 1935. See Bipan Chandra, Freedom Struggle. Oxford
University Press,
New Delhi, 1990.
135 This has been effected vide, 79th Constitutional Amendment Act 1999, brought into
force wef.25.1.2000.
136 Article 330 and 332 of Indian Constitution.
41
4.2. Resevation in Jobs (Government Services)
Resevation in government services as a measure of protective discrimination has been
incorporated under article 16 (4) of the Indian Constitution. This particular provision
falls under the head of “ Right to Equality”. In order to give effect to general right to
equality under article 14, the constitution secures to all citizens a freedom from
discrimination on grounds of religion, race and caste. In the specific application of this
equality guarantee; the State is further forbidden to discriminate against any citizen on
grounds of place of birth, residence, descent, class , language and sex.137
Untouchability
has been abolished and the citizens are protected against discrimination even on the
part
of the private persons and institutions.138 The constitution after guaranteeing the
general
right of equality under article 14 defines equality in terms of justice by non
discrimination provisions contained in article 15 (1) and 16 (1) and proceeds to
incorporate provisions of preferential treatment so as to permit the State to achieve
equality to disadvantaged sections by giving them preferential treatment in all its
dealings
and particularly in the area of public employment. While article 16 (1) guarantee equality
of opportunity for all citizens in matters of employment or appointment to any office
under the State, article 16 (2) provides that no citizen shall on grounds only of religion,
race , caste, sex, descent, place of birth, residence or any of them, be ineligible for or
discriminated against in respect of any employment or office under the State. And article
16 (4) which provides for protective measure of reservations of seats in government
employment lays down, that nothing in this article shall prevent the state from making
any provision for reservation of appointments or posts 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.
It may be noted that this particular provision of protective discrimination is not intended
to negative or derogatory of the guarantee of equality of article 14 or 15 (1) or 16 (1)
and
16 (2), but is definitive of equality in relation to backward group139. Thus article 16 (4)
should be taken as a clarification that while making classification for favoured treatment
to backward classes the State might use the forbidden criteria, because any real
classification will have to take into account the inequalities based on abuse of caste,
religion, race etc. criteria. Therefore on the one hand, the constitution forbids
discrimination on grounds of race, caste or religion etc, so that the old inequitous
situation may not be continued, on the other hand it permits these very criteria for
correcting evil consequences flowing from their past misuse. This view stands
supported
by the cases decided by the Supreme Court according to which the state is authorised
to
use caste as an index of social and educational backwardness for making preferences,
of
course, subject to the rider that caste, cannot be the sole or dominant test, although it
can
be used in conjunction with other relevant consideration like poverty, occupation , place
of habitation etc.140
137 Article 15 (1), and 15 (2) of Indian Constitution.
138 Article 17 of the Indian Constitution, also see the Protection of Civil Rights Act 1957.
139 Dr. Parmanand Singh, Equality, Reservation and Discrimination in India, Deep and
Deep Publications
New Delhi, 1985
140 M.R.Balaji v. State of Mysore, AIR 1963, SC 649.
42
It is noteworthy that under article 16 (4) reservation in government service can be made
not only at the initial stage of recruitment, but even in the matter of promotion from a
lower to a higher post or cadre.141 Thus selection posts can also be reserved for
backward
classes. The expression adequately represented in article 16 (4) imports considerations
of
size as well as values. Adequacy of representation of backward classes in any service
has
to be judged by reference to numerical as well as qualitative tests 142. Article 16 (4)
neither confers a right on any one nor imposes a constitutional duty on the government
to
make a reservation for any one in public services. It is merely an enabling provision and
confers a discretionary power on the state to reserve appointments in favour of certain
classes of citizens. 143
An important point about article 16 (4) is that, this provision permits state to classify
individuals for favoured treatment. Now the point is that classification is possible even
under article 14 itself which inter alia provides for equal protection of laws. In fact Dr.
Ambedkar has suggested a proviso to article 14 that “nothing in this clause shall prevent
the state from making any law for the removal of inequality, disparity, disadvantage or
discrimination arising out of existing law. Had this proviso been adopted there would
have been no need to have provision like article 16 (4), however a cursory glance at the
constituent Assembly debates proves that article 16 (4) was incorporated by way of an
abundant caution144. Probably the framers did not want to leave this positive notion of
equality as an aspect of justice to the vicissitudes of judicial attitudes which had been
thick with formal equality.
Despite this level of caution on the part of constitutional framers, the controversy of
formal vs proportional equality equality has not escaped article 16 (4). If one takes the
view of formal equality145 which simply requires absence of any discrimination in the
words of law, then formal non discrimination rule in government services has been given
under article 16 (1) and article 16 (4) is simply an exception. And if article 16 (4) is an
exception, then the permissible limit of reservations cannot exceed 49 percent as the
exception cannot override the original provision146. Further if under formal equality
vision article 16 (4) is taken to be an exception then the state is not authorised to
choose
any method for giving favoured treatement to the backward classes in the area of public
employment. Even reservations have to be made subject to the requirement of article
16
(4) regarding backwardness and under-representation of the preferred groups. Article
16
(4) read by itself rules out other possible ways of encouraging the backward classes in
the state employment.147 For instance it is unclear whether the preferential rules such
as
waiver of age requirement, application of fees and minimum educational qualifications,
141 General Manager S.Rly v. Rangachari, AIR, 1962 SC 36.
142 Ibid.
143 M.R.Balaji, v. State of Mysore, AIR 1963 SC 649.
144 B.Shiva Rao, Making of India’s Constitution, Vol-III.
145 Justice Mathews articulated the concept of formal vs numerical equality, in his
address to the Evening
Faculty of Law, University of Delhi, on 25th Jan 1975. This was a Symposium on the
Consitution of India,
entitled “Fundamental Rights and Distributive Justice”.
146 M.R.Balaji, v. State of Mysore, AIR, 1963 SC 649.
147 Ibid.
43
special coaching and training programmes are included within the power under article
16
(4). Apparently these preferences are not reservations in the strict sense of the term.148
If on the other hand a broader notion of proportional or substantive equality is adopted
16
(4) would not be an exception but an explanation of article 16 (1), and this vision of
article 16 (4) would enable the state in making exceptional provisions for the purpose of
benefitting the backward classes. For example if 16 (4) is to be an explantion of 16 (1)
then 16 (4) would not be controlled by 16 (1) and quantum of reservations under article
16 (4) is not required to be contained within 50 percent limit.
For long it had been the view that article 16 (4) is an exception of article 16 (1) and as
such the claims of backward classes could be projected only through the exceptional
clauses and not outside them.149 The departure from equality could be permitted only
to
the extent mentioned in clause 4 of article 16. This clause could not be read as
completely excluding or ignoring the rights of other citizens. If unlimited reservations
were permissible , this would have the effect of effacing the guarantee contained in
equality provisions.150
But in Thomas 151decision the Supreme Court by majority rejected the notion that
article
16 (4) is an exception or proviso to article 16 (1). The Court majority held that article 16
(4) is merely an illustration of article 16 (1) and as such is not controlled by article 16
(1). The result is that the state is not confined only to the method of reservations for
encouraging the backward groups in the area of public employment; it is free to choose
any means to achieve equality of opportunity for these backward classes. This also
meant
that quantum of reservations is not necessarily to be within 50percent limits. This case
involved the validity of a scheme showing favour to the scheduled castes and tribes
employees by exempting them from the necessity of passing the departmental test for
promotion in services. The circumstances leading to the scheme were something like
this. It was brought to the notice of government of Kerala that a large number of
government servants belonging to the scheduled castes and tribes were unable to get
their
promotions from lower division clerks in the registration department. In order to give
relief to the backward classes of citizens, the government incorporated rule 13 AA under
the Kerala State and subordinate services Rules 1958 enabling the government to grant
exceptions to the scheduled castes and scheduled tribes employees for a period of two
years from passing the necessary tests. As a result of this rule , thirty four out of fifty
one
posts were filled up by members of scheduled castes and tribes without passing the
test.
N.M.Thomas, a lower division clerk, was not pomoted despite his passing the test. He
questioned the rule 13 AA as violative of article 16 (1) and not saved by article 16 (4).
The Kerala High Court declared the impugned rule invalid under article 16 (1). The
impugned scheme resulting in promotion of over sixty percent of employees of the
148 Dr. Parmanand Singh, Equality, Reservation and Discrimination in India, Deep &
Deep Publications,
New Delhi, 1985.
149 P.Sagar, v. State of Andhra Pradesh, AIR, 1968 AP 166.
150 Devadasan v. Union of India, 1964 (4) SCR 680.
151 State of Keral v. N.M.Thomas, (1976) 2 SCC 310.
44
preferred group was held to be excessive and not conducive to the administrative
efficiency.152
However the Supreme Court on appeal upheld the rule by saying that article 16 (1)
permits reasonable classification just as article 14 does and as such the state could
adopt
any method under the former article to ensure adequate representation of the
scheduled
castes and tribes in public services. The majority further held that equality of opportunity
in matters of employment demanded favoured treatment to enable the weakest
elements
to compete with the advanced. Justice Krishna Iyer observed, “ To my mind, this sub
article i.e. article 16 (4) serves not as an exception but as an emphatic statement, one
mode of reconciling the claims of backward people and the opportunity for free
competition the forward sections are ordinarily entitled to …. True, it may be loosely said
that article 16 (4) is an exception but closely examined, it is an illustration of
constitutionally sanctified classification. Article 16 (4) need not be a saving clause but
put in due to the over anxiety of the draftsmen to make matters clear beyond possibility
of doubt”153.
It has been noted that from the very beginning the general explanation given by the
supreme Court was that article 16 (4) was an exception of article 16 (1). The implication
of this ruling was that since article 16 (4) was an exception and could not eat away the
general rule of article 16 (1) the quantum of reservations could not exceed 50 percent.
This proposition was forcefully expounded in Devadasan’s case154. It was laid down
that
a proviso or an exception cannot be so interpreted as to nullify or to destroy the main
provisions and therefore the reservations for backward classes should not be so
excessive
as to create a monopoly or to destroy unduly the legitimate claims of other communities.
Reservations of more than 50 percent of vacancies per se were held to be destructive of
the rule of equality of opportunity. 155The object of the provision under article 16 (4)
was
to ensure that the backwardness of the backward classes did not unduly handicap their
members from securing public employment under the state and when the reservation
was
so excessive in character as to deny in practice a reasonable opportunity to other
classes it
was a fraud on the constitution. But this ruling was overturned in Thomas decision and
now article 16 (4) is not an exception but an explanation or instance or illustration and
as
such 50 percent can not be the outer limit of the reservations.
This view of article 16 (4) has been endorsed in Indira Sawhney v. Union of India156. It
has been held that Equality postulated under the Constitution is not merely legal but real
equality. Holding article 16 (4) to be an explanation of 16 (1), justice Sawant has
rationalised that equality of opportunity has to be distinguished from equality of results.
Various provisions of constitution show that right to equality is not a formal right or a
vacuous declaration, it is a positive right and the state is under an obligation to
undertake
measures to make it real or effectual. A caveat has however been posted by Justice
152 H.M.Seervai, Constitutional law of India, N.M.Tripathi Bombay, 1993.
153 In fact Justice Krishna Iyer qoted Justice Subba Rao’s dissenting judgement from
Devadasan v. Union
of India,without mentioning the fact that this was dissenting judgment.
154 Devadasan v. Union of India, (1964) 4 SCR 680.
155 Ibid.
156 Indira Sawhney v. Union of India, AIR 1993, SC. 477.
45
Sahai, who had emphasised that “ reservations being negative in content to the right of
equality guaranteed to every citizen by article 16 (1), it has to be tested against positive
right of a citizen and is a direct restriction on state power. Judicial review , thus instead
of being ruled out or restricted, is imperative to maintain the balance. The court has a
constitutional obligation to examine if the foundations of state’s action was within
constitutional periphery and even if it was, did the government prior to embarking upon
solving the social problem by raising narrow bridge under article 16 (4) to enable the
weaker sections of the people to cross the rubicon discharged its duty of a responsible
government by constitutional method so as to put it beyond any scrutiny by the eye and
ear of the constitution.157
4.3. Reservations in Educational Institutions.
Provisions for reservations in educational institutions to deprived sections of scheduled
castes and scheduled tribes has been secured under article 15(4). Article 15 (1)
specifically bars the state from discriminating against any citizen, race, caste, sex, place
of birth or any of them. Article 15 (4) on the other hand lays down that the state is not
prevented from making any special provision for the advancement of any socially and
educationally backward classes.. The expression “making any special provision” is
evidently an open ended provision and government can really go on providing a whole
array of facilities for promoting the interests of socially and educationally backward
classes, for example waiver of fees, waiver of age requirements, special coachings,
scholarships, grants, loans etc. Interestingly, however, the use of article 15 (4) has
exclusively been made so far for providing reservations in educational institutions.
The two most contentious issues about providing reservations in educational institutions
for scheduled castes and scheduled tribes is ,(1) Determination of backward class
status
and (2) extent or quantum of reservations. Determination of socially and educationally
backward class status is not a simple matter as sociological and economic
considerations
come into play in evolving proper criteria for its determination158. Article 15(4) lays
down the criteria to designate backward classes, it leaves the matter to the state to
specify backward classes. Article 340 contemplates appointment of a commission to
investigate the conditions of socially and educationally backward classes and such
other
matters as are referred to the commission. Article 341 provides that the President may
by
notification in a particular state; after due consultations with governor in a particular
state
specify the castes, races or tribes which shall for the purpose of this constitution be
deemed to be scheduled castes in relation to that state. The second clause of this
article
provides the list of scheduled castes specified in the notification issued under scheduled
tribes. However it may be noted that the courts are not precluded from from going into
the questions whether the criteria used by the state for the purpose are relevant or not.
159
157 Ibid.
158 M.P.Jain, Indian Constitutional Law, Wadhwa and Company, Nagpur, 1997.
159 Moosa v. Kerala, AIR 1960, Ker 355.
46
The question of defining backward classes has been considered by the Supreme Court
in
a number of cases.160 On the whole the courts’ approach has been that state
resources are
limited; protection to one group affects the constitutional rights of other citizens
maintained in public services because it is implicit in the very idea of reservation that a
less meritorious person is being preferred to a more meritorious person. The court also
seeks to guard against the perpetuation of the caste system in India and the inclusion of
advance classes within the term backward classes. From several judicial
prounouncements concerning the definition of backward classes, several propositions
emerge. First the backwadness envisaged by article 15 (4) is both social and
educational
and not either social or educational.161 This means that a class to be identified as
backward should be both socially and educationally backward. Secondly, poverty alone
cannot be the test of backwardness in India because by and large people are poor and
therefore, large sections of population would fall under the backward category and thus
the whole object of reservation would be frustrated.162 Thirdly backwardness should be
comparable , though not exactly similar to scheduled castes and scheduled tribes.
Fourthly, castes may be a relevant factor to define backwardness, but it cannot be the
sole
or even the dominant criterion163. If classification for social backwardness were to be
based solely on caste, then the caste system would be perpetuated in the Indian
society.
Also this test would break down in relation to those sections of society which do not
recognise caste in the conventional sense as known to the Hindu society. Fifthly,
poverty,
occupations, place of habitation, all contribute to backwardness and such factors cannot
be ignored. Sixthly, backwardness may be defined without any reference to caste. As
the
Supreme court has emphasised164 Article 15 (4) does not speak of castes, but only
speaks
of classes, and that caste and clas are not synonymous. Therefore exclusion of caste to
ascertain backwardness does not vitiate classification if it satisfies other tests.
Second most contentious issue as has been noted above is the quantum of
reservations
which has become a knotty socio-political issue of the day . Because of keen
competition
for limited opportunities available in the country, governments are pressurised to indulge
in all kinds of reservations for all kinds of groups apart from the reservations for
scheduled castes and scheduled tribes and backward classes. Basically any
reservations is
discriminatory for reservation means that as between two candidates of equal merits,
the
candidate belonging to the reserve quota is preferred to the one having no reserve
quota.
Many deserving candidates thus feel frustrated because of reservations for the less
deserving persons and they seek to challenge the scheme of reservations as
unconstitutional.
Till Thomas165 case, the Supreme Court decisions on article 15 (4) had held that this
article was an exception and that speaking generally, reservations should be less than
50
percent. In Devadasan’s 166case, the majority held that reservation should be less than
50
160 See D.N.Chanchala v. State of Mysore, AIR 1971, SC 839.
161 State of Andhra Pradesh v. P.Sagar, AIR 1968 SC 1367.
162 Pradip Tondon v. State of U.P. AIR 1982.
163 D.N.Chanchala, v. State of Mysore, AIR 1971 SC 1762.
164 Indira Sawhney v. Union of India, AIR 1993 SC 477.
165 State of Kerala v. N.M.Thomas, AIR 1976 SC 490.
166 Devadasan v. Union of India, 1964 (4) SCR 680.
47
percent. However in Thomas decision this long held position was reversed and 15 (4)
and 16 (4) as well held to be not an exception but an illustration of 15 (1) and 16 (1) the
effect of which was that since 15 (4) is just and illustration of 15 (1), 15 (4) would not be
controlled by 15 (1) and as such the quantum of reservations could go beyond 50
percent. The rationale of such a turn around was articulated by Justice Krishna Iyer,
“The expression, ‘nothing in this article’ is a legislative device to express its intention in
a most emphatic way that of the power conferred thereunder is not limited in any way by
the main provision 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”.167
This Theory of legislative device is not tenable and can be criticised on a number of
counts. H.M.Seervai, lists the following criticism.
1. It ignores the scheme of article 15 and 16 and more particularly the relation of
clauses (1) and (2) of article 15 and 16, to clauses (3) and (4) of article 15 and to
clauses (3), (4) and (5) of article 16 respectively
2. It ignores the fact that the words ‘nothing in this article’ appear as the opening words
not only in article 16 (4) but also in article 15 (3) and (4) and in article 16 (3) and
(5) and in those four sub clauses the opening words are not a legislative device.
3. It ignores the fact that it is impossible to argue that clauses (3) and (4) of article 15
and clauses (3) and (5) of article were inserted, ex majore Cautela.
4 It ignores the legislative history of article 16 (4) which shows that 16 (4) was an
exception of article 16 (1).
5. It ignore the decisions of high authority which show that the words ‘nothing in this
Act’ or ‘nothing in this article’ are apt words for introducing exceptions.
6. When the passage propounding the theory of a legislative device is examined it will
be found that it is difficult to give the words in the passage a rational meaning and at
any rate the theory leads to absurd results.168
It may be added in favour of the ibid argument that sub article 15 (1) and 15 (4) are
parts of article 15 which appears under the group heading ‘right to equality’. A plain
rerading of sub articles 15(1) and 15 (2) show that they confer fundamental rights.
Article 15 (1) confers a fundamental right on every citizen by commanding the state not
to discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them. If any action of the state violates a citizen’s fundamental right under
article 15 (1), then article 13 declares such action to be pro tanto void, and article 32
and
226 give him a speedy and effective remedy against the state for the protection of his
fundamental rights. Article 15 (2) is directed not only to the state but also to any person
and it provides that no citizens shall, on the prohibited grounds, be subject to any
167 Justice Krishna Iyer, supra f.n. 80.
168 Constitutional law of India, H.M.Seervai, N.M.Tripathi, Bombay, 1993.
48
disability, liability, restriction or condition with regard to the matters set out in sub
clauses (a) and (b) of article 15 (2). In the present discussion we are not concerned with
sub article 15 (2) except is so far as it reflects the scheme of article 15, namely, that sub
article 15 (1) and (2) confer legally enforceable fundamental right. Article 15 (3) does not
confer any right much less a fundamental right on women and children but merely
confers a discretionary power on the state to make special provisions for them. Article
15
(4), with which we are directly concerned, again confers no right much less a
fundamental right, on any socially and educationally backward class of citizens or on the
scheduled castes and scheduled tribes, but merely confers a discretionary power on the
state to make any special provision for the advancement of aforesaid classes169. It
would
evidently be an absurdity if the part which confers merely a discretionary power is given
primacy over the part which confers a fundamental right enforceable directly in the
highest court of the land.
Evidently if article 15 (1) stood alone, no discrimination could be made for example in
favour of scheduled castes , first, because discrimination on the ground of caste is
prohibited by article 15 (1), and scheduled castes are castes. In any event
discrimination
on the ground of religion is also prohibited by article 15 (1) and scheduled castes are
based on religion, because no one can be deemed to be a member of scheduled castes
if
he does not profess the Hindu or Sikh religion. Therefore article 15 (4) takes out
discrimination in favour of scheduled castes from the prohibition against discrimination
on the grounds of caste or religion. But in a section or an article, a later provision which
takes something out of an earlier provision, is recognised to be an exception because,
but
for the exception, its subject matter would fall within the earlier provision. Secondly this
subordination of sub article 15 (4) to article 15 (1) is further strengthened by the fact that
sub article 15 (1) confers legally enforceable fundamental right and sub article 15 (4)
confers no right at all. And in this scheme of things a sub article conferring no right but
conferring a mere discretionary power on the state is put on a higher plane than the one
which confres a fundamental right. This conclusion can further be tested in another way.
If article 15 (1) were repealed, because, then article 15 (4) must fall with it or stand
impliedly repealed because, apart from article15 (1) there is nothing in the constitution
which prevents the state from making a special provision for the advancement of the
classes mentioned in article 15 (4). The above analysis of article 15 supports the view
consistently taken by the Supreme Court prior to Thomas decision, with the
consequences that the permissible limit of reservations could not exceed the limit of 50
percent.
N.M.Thomas decision which has been noted above in detail holds that 15 (4) and 16 (4)
are not exceptions , then what is the relation of article 15 (1) and 15 (4), must be
ascertained. Can it be said that sub article 15 (4) is the dominant article and 15 (1) is
subordinate sub article ? To ask this questions is to answer it in the negative. For a sub
article which confers no right but a discretionary power, cannot be described as
occupying a dominant or primary position over an enforceable fundamental right. But if
sub article 15 (4) cannot be treated as the dominant provision can the two sub articles
be
treated as indepndent of each other ? the answer is “no”. First because artcle 15 (4)
opens
169 H.M.Seervai, ibid. p.557.
49
with the words “ Nothing in this article shall prevent the state…” which shows that article
15 (4) is in some way related to or connected with article 15 (1). Secondly the statement
that sub article (1) and subarticle (4) are independent of each other leads to an internal
contradiction and to an absurd result. For to say that sub article 15 (1) is not in any way
affected by sub article 15 (4) and vice versa. This means that a citizen can enforce his
fundamental right against the state regardless of what is contained in sub article 15 (4).
Equally that the state can exercise its discretionary power under article 15 (4)
regardless
of what is contained in sub article 15 (1). This leads to the self contradictory and absurd
result that a citizen cannot exercise his fundamental right not to be discriminated
against
on the ground of caste or religions if the state can discriminate against him on the
ground
of caste and religion in favour of scheduled castes. And similarly the state cannot
exercise its discretionary power to discriminate against a citizen, the citizen has a
fundamental right under article 15 (1) not to be so discriminated against. Therefore it
follows that the two sub articles are not independent. There is no third alternative which
would describe the relation of article 15 (1) and 15 (4) unless it is said that article 15 (4)
has been enacted ex majore cautela, that is by way of abundant caution. But to say this
is to say that sub article 15 (4) was not necessary and that the result would have been
the
same even if it had not been enacted or was struck out. But if the terms of sub article 15
(4) were struck out, the state would have no power to make special provision for the
advancement of the classes mentioned in article 15 (4), because such a provision would
violate the prohibition of article 15 (1).
It has to be noted that since every reservation is a permission of discrimination in
reverse
the quantum or the extent of reservation assumes great importance for the citizen, for
the
public generally and for the state as well. An instructive illustration of such a case can
be
found in a number of cases occurring almost every year where candidates who have
scored as low as 20 percent marks are admitted into coveted courses and those who
have
scored above 60 or even 70 percent marks are left out simply because they happened
to
belong to forward castes170. Such left out candidates would naturally feel a deep sense
of
resentment and injustice at being passed over in favour of candidates who have scored
very low in entrance test. On the other hand those who gets admission into such
courses
are not able to make through the relevant courses for a number of years and prove to
be
drain for the state’s scarce resources. The injury to the public is that they have to deal
with a less able public servant and for the state it is a less efficient public service. These
facts do not disappear because it is said that to redress a great historical wrong done to
a
section of Hindu society the individual must put up with the feeling of resentment and
injustice and the public and the state must put up with a less efficient public service at
least for a reasonable period of time.
It was for the purpose of avoiding this contingency of getting the inefficiency introduced
in the services that article 335 was provided in the Constitution of India, which laid down
that the claim of the members of the scheduled castes and the scheduled tribes shall be
taken into consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in connection with
affairs of the union or the states. Supreme Court in a rather recent case has taken note
of
170 Jan-Satta, 13th June, 1994, New Delhi.
50
article 335 in the interpretation of article 15 (4) and has ruled that selection for the post
graduate course in Medical sciences should be inconsistent with article 335, as these
entrants occupy posts in teaching Hospitals. The element of public interest in having the
most meritorious students is also present at the stage of post graduate level in medical
specialities like superspecialities. Those who have specialised medical knowledge in
their
chosen branch are able to treat better and more effectively. Patients who are sent to the
hospitals are treated by these students who enroll for such speciality courses. At this
level
an ability to assimilate and acquire special knowledge is required. Therefore selection of
the right calibre of the students is essential in the public interests at the level of
specialised postgraduate education. In view of this supervening public interest which
has
to be balanced against the social equity of providing some opportunities to the
backwards
who are not able to qualify on the basis of marks obtained by them for post graduate
learning. It is also for an expert body such as the medical council of India, to lay down
the extent of reservations. Lowering of the marks, if any, are to be consistent with the
broader public interest in having the most competent people for specialised training and
the competing public interest in securing social justice and equality.
It has been stated above that the expression under article 15 (4) “Any special provision
for the advancement of ….” Is an open ended and very wide provision. It is unfortunate
that it has not been utilised for other purposes. The underlying assumption of the
interpretation of article 15 (4) so far appears to be that unless posts, including
promotional posts are reserved for backward classes in public employment, their status
can never be improved. It cannot be said that there are no other methods to consider by
which that status can be improved because to say this is to overlook the wide scope of
article 15 (4). The language of article 15 (4) shows first that reservations as such are not
expressly mentioned in article 15 (4), but fall within the wide expression “special
provisions for the advancement of…” It is overlooked that special provisions include
every kind of assistance which can be given to backward classes and scheduled castes
and scheduled tribes to make them stand on their feet or as is commonly said to bring
them into the mainstream of Indian life. Illustratively those measures would include
grant
of land either free or on nominal rent the supply of seeds and agricultural implements,
the
supply of expert advice as to how to improve the yield of land, provisions for marketing
the produce and the like171. Those measures would also include schemes for training
the
backward classes to pursue trades or small business which would fetch a reasonable
income. In relation to education itself, under article 15 (4) the state can give free
education, free text books free uniforms and subsistence allowance, merit scholarships
and the like, starting from the stage of primary education and going right up to
University
and post graduate education. Once this is realised, how vast and varied are the powers
at
the disposal of the state it if really takes care to improve the lot of scheduled castes and
scheduled tribes, and backward classes, the controversies of reservations, of preferring
less meritorious to the more meritorious one, or of impairing the efficiency of
administration for the purpose of providing protective discrimination, which more often
than not are accused to be governed by political considerations shall lose much of their
shine.
171 Dr. Parmanand Singh, Equality, reservations and discrimination in India, Deep &
Deep Publications
New Delhi, 1985.
51
4.4. Preferences in Resource Distribution.
The Preamble to the Indian Constitution of India, has enjoined the “sovereign, socialist,
secular172, democratic Republic of India, to secure to all its citizens, social economic
and
political justice”. Political justice is ensured by reserving seats and ensuring a minimum
representation to deprived and exploited sections of society in the legislatures and other
political bodies. 173Social and economic justice is intended to be achieved by the state
in
pursuance of the Directive Principles of state policy contained in chapter IV of the
Constitution, which command the state to remove existing socio-economic inequalities
by special measures. All these provisions are intended to promote the constitutional
scheme to secure equality. These provisions set forth a programme for the
reconstruction
and transformation of Indian Society by a firm commitment to raise the sunken status of
the pathetically neglected and disadvantaged sections of our society. Before we note
how
the reconstruction and transformation of Indian society is intended to be realised, it must
be noted that the provisions included in Directive Principles of State policy are not
enforceable in the courts, however the principles laid down in this part of the
Constitution
are fundamental in the governance of the country.
These provisions may better be described as the active obligations of the state174. The
State shall secure a social order in which social, economic and political justice shall
inform all the institutions of national life.175 Wealth and its source of production shall
not
be concentrated in the hands of the few but shall be distributed so as to subserve the
common good. And there shall be adequate means of livelihood for all and equal pay for
equal work. 176The state shall endeavour to secure the health and strength of workers,
the
right to work, to education and to assistance in cases of want, just and humane
conditions
of work and living wage for workers 177a uniform civil code178, and free and
compulsory
education for children.179 The state shall take steps to organise village panchayats,180
promote the educational and economic interests of the weaker sections of the people,
raise the level of nutrition and standards of living, improve public health, organise
agricultural and animal husbandry,181 separate the judiciary from executive 182and
promote international peace and security.183 Article 46 which specifically refers to the
obligation of the state towards the weaker sections and scheduled castes and
scheduled
tribes etc provides that “The state shall promote with special care the educational and
economic interests of the weaker sections of the people, and in particular of the
scheduled
172 The word Secular was added in to the Preamble by 42nd Amendment, 1975.
173 See Articles 330 to 334 of Indian Constitution.
174 V.N. Shukla, Constitutional Law of India, Easern Book Company, Lucknow, 1990.
175 Article 38 of Indian Constitution.
176 Article 39 of Indian Constitution.
177 Article 41, 42 and 43 of the Constitution.
178 Article 44 .
179 Article 45.
180 Article 40.
181 Article 47 and 48.
182 Article 50.
183 Article 51.
52
castes and scheduled tribes and shall protect them from social injustices and all forms
of
exploitation”.
In pursuance of these directives , various land re-distribution and allotment programmes
have been initiated. In fact so great was the enthusiasm of the government in this
particular respect that hundreds of land reform laws were passed in the first five years
of
Indian Republic. This ensued a spate of litigation in the courts, as the land reforms laws
infringed the right to property of the land owners.184 However the government was so
determined to effect land reforms that the right to property which was provided under
article 31 of the constitution was modified six times and finally was done away with for
the purpose of avoiding litigation in land reform measures of the government185.
For the purpose of providing legal aid to the poor and indigent a vast network of legal
aid
programmes involving judicial officers, Bar Councils and law Schools, have been
established all over the country. Legal Services Authority Act, 1987 which was meant to
provide legal aid to all those who cannot afford access to legal services either due to
poverty indigence or illiteracy or backwardness, has been a big success and apart from
legal services authorities at the central and state level various legal aid committees
have
been successfully and effectively working at the district and taluka level.
Apart from this various health care programmes such as primary health centres all over
the country have been established and various scholarships grants, loans etc for the
deprived sections of the population have been contributing their bit towards the
socioeconomic
transformation of the country. These distributive schemes are accompanied by
efforts to protect the backward classes from exploitation and victimisation.
4.5. Action Plans and Amelioration Programmes.
In the third group of preferential policies aimed at protective discrimination are various
action plans for the removal of incapabilities on the part of the underprivileged groups.
Constitution itself talks about prohibitions of forced labour under article 23, in pursuance
of which Bonded Labour Abolition Act was passed in 1976. In recent years there have
been strenuous efforts to release the victims of debt bondage, who are mostly from
scheduled castes and scheduled tribes. Anti-untouchability programme is another area
of
governmental concern. Constitution itself abolished untouchability vide article 17 which
lays down that “ Untouchability is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of untouchability shall be an offence,
punishable in accordance with law. It is noticeable that the word “Untouchability” is not
to be construed in its literal sense which would include persons who are treated as
untouchables either temporarily or otherwise for various reasons, such as their suffering
from an epidemic contagious disease or on account of social observance such as are
associated with birth or death etc. On the other hand Untouchability is to be understood
in
the sense of a practice as it has developed historically in India. The word refers to those
regarded as untouchables in the course of historical developments in this country.
184 See Kameshwar Singh v. State of Bihar, AIR, 1962, SC 1116.
185 44rth Constitutional Amendment Act of 1978 abolished the Right to Property from
Indian Constitution.
53
Anti-untouchability propaganda and the Protection of Civil Rights Act, attempts to
relieve untouchables from the social disabilities under which they have suffered. These
measures may not strictly be called compensatory discrimination in the formal sense of
the term, but in substance it is special undertaking to remedy the disadvantaged
position
of the untouchables.
5. General Observations.
It may be summed up by way of general observations that the present model of
compensatory discrimination policies presents a very perplexing conundrum, which can
be said to be sui generis. In such a system nothing can remain sans controversies.
However an impartial observer of the Indian scene may not have difficulty in concluding
that the contemporary discrimination policies have vigorously been followed in post
independent India. And they have produced a substantial redistributive effects as well.
Reserved seats provide a substantial legislative presence and swell the flow of
patronage,
attention and favourable policies to scheduled castes and scheduled tribes. The
reservation in jobs and educational institutions has given to a sizable portion of the
beneficiary group earnings, and the security, information, patronage and prestige that
goes with government job in India. However this has not gone without costs. In fact the
costs have been enormous. Lot of frustration amongst those who have been deprived
off
the jobs, which they would have got in the absence of preferential policies, undermining
the efficiency of administration, underlining the differences and leading invidious
discriminations, making the beneficiary groups dependent and blunting their
development
and initiative etc could be said to be costs of these preferential policies. The criticism
that
these policies have evoked and the debates that take place in India today, represent the
vivacity of the Indian Civilisation, wherein the advantages and disadvantages, hopes
and
frustrations are indisolubly bound to one another, and connects the past with the future
with an unbreakable continuity of the present.
XXXXXXXXXXXXXXX

CONSTITUTIONAL REVIEW IN THE

GLOBAL CONTEXT
John E. Ferejohn*
It’s already been said several times that the American model of
judicial review is spreading like wildfire—Chris just said it, John Sexton
started the panel with it—and it’s not really correct. The United
States is virtually unique in having judicial review, if judicial review
means a system in which ordinary judges can review and strike down
legislation.1 Other countries that have adopted constitutional review
have taken great pains to exclude ordinary judges from having any
part in it. This was true at the time of the origination of the new
model of constitutional review in Austria after World War I,2 and it
was true in Germany3 and Italy4 after World War II. It was true in
* Carolyn S. G. Munro Professor of Political Science and Senior Fellow, The
Hoover Institution, Stanford University
1. For the origins of the American system of judicial review, see, for example,
Marbury v. Madison, 5 U.S. 137, 177–78 (1803).
It is emphatically the province and duty of the judicial department to say
what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each. So if a law be in
opposition to the constitution; if both the law and the constitution apply to
a particular case, so that the court must either decide that case conformably
to the law, disregarding the constitution; or conformably to the constitution,
disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial
duty.
Id.
2. See Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the
Austrian and the American Constitution, 4 J. POL. 183, 185–86 (1942) (explaining
that Austria’s 1920 constitution prohibited ordinary courts from reviewing
constitutionality
of statutes; task left to special Constitutional Court (Verfassungsgerichtshof)).
3. See DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE
FEDERAL
REPUBLIC OF GERMANY 3–4 (1989) (West Germany’s power of judicial review
reserved for special politically-appointed tribunal rather than multi-jurisdictional high
court of legal technicians).
4. See Alessandro Pizzorusso, Constitutional Review and Legislation in Italy, in
CONSTITUTIONAL REVIEW AND LEGISLATION: AN INTERNATIONAL
COMPARISON 109,
111–14 (Christine Landfried ed., 1988) (explaining that fifteen members of Italy’s
Constitutional Court are specially and politically appointed; one third by President,
one third by Parliament, and one third by senior judiciary); see also MARY L. VOL-
49
50 LEGISLATION AND PUBLIC POLICY [Vol. 6:49
Spain5 and Portugal6 after the collapse of their authoritarian governments.
And it was true after the collapse of Soviet hegemony over
Eastern Europe.7 In every case we see that American style judicial
review was rejected in favor of something different. We need to pay
attention to that basic fact.8
Why is it that the form of constitutional review spreading like
wildfire is not the American form, but is another form altogether?
Why is it that the American style has not been very popular? I think
we can get answers to these questions by asking about the circumstances
that have given rise to constitutional adjudication over the past
half century.
There have been three distinct waves of constitutional adjudication
in post-war Europe. The first took place right after World War II
in Germany and Italy.9 The second wave was after the collapse of the
Spanish and Portuguese authoritarian governments, and of the Greek
dictatorship about quarter century ago.10 And, the third wave followed
the collapse of the Soviet Union about ten years ago. In every
case, the nations adopted the same model, pretty much. The choice
was always what I shall call the Kelsenian model: specialized constitutional
courts, populated by law professors, and never were ordinary
CANSEK, CONSTITUTIONAL POLITICS IN ITALY: THE CONSTITUTIONAL COURT
15 (2000)
(identifying Kelsen-inspired, interwar Austrian system, and to lesser extent American
system, as inspiration for postwar judicial review in Italy).
5. See Francisco Rubio Llorente, Constitutional Review and Legislation in Spain,
in CONSTITUTIONAL REVIEW AND LEGISLATION: AN INTERNATIONAL
COMPARISON
127, 127–31 (Christine Landfried ed., 1988) (explaining that Magistrates of Spanish
Constitutional Court must be “either magistrates, government attorneys, university
professors, civil servants or attorneys—in all cases, legal professionals of recognized
competence with 15 years of practice”).
6. See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism,
49 AM. J. COMP. L. 707, 714–15 (2001) (claiming that judicial review in countries
such as Portugal is polar opposite of American system).
7. See id. at 715–16 (claiming that Central and Eastern European countries have
eschewed American model of constitutional review); Robert F. Utter & David C.
Lundsgaard, Judicial Review in the New Nations of Central and Eastern Europe:
Some Thoughts from a Comparative Perspective 54 OHIO ST. L.J. 559, 585 (1993)
(“To date, the Austrian model has also been the most popular choice of new nations in
Central and Eastern Europe.”). See generally Rett R. Ludwikowski, Fundamental
Constitutional Rights in the New Constitutions of Eastern and Central Europe, 3
CARDOZO
J. INT’L & COMP. L. 73 (1995).
8. For a more detailed analysis, see JOHN FEREJOHN AND PASQUALE PASQUINO,
DELIBERATIVE INSTITUTIONS (W. Sadurski ed., Cambridge Univ. Press, forthcoming
2002) (on file with author).
9. See VOLCANSEK, supra note 4, at 1, 15 (describing establishment of constitu- R
tional review in Axis countries after World War II).
10. See Gardbaum, supra note 6, at 715. R
2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 51
judges permitted to participate.11 No country ever adopted the American
practice of judicial review, and in most cases the rejection was
explicit and decisive.12 Why?
Part of the answer, of course, is that in every case I mentioned, a
formerly authoritarian system adopted a new constitution and provided
for constitutional review in order to enforce constitutional provisions.
That was the case in Germany and Italy, obviously, and also in
Spain, Portugal, Greece, and the nations previously part of the Soviet
empire. These were all cases of failed authoritarian systems with no
recent history of democracy or liberty. By contrast, in the old (stable
and successful) democracies—Britain, New Zealand, the Netherlands,
Sweden—there was no move to create new constitutions, or indeed,
any real constitutions at all.13 And, of course, without a written constitution,
there is little need for constitutional courts. The home of
contemporary constitutional adjudication, the wildfire, is post-authoritarian
systems.
One thing that post-authoritarian systems have in common is that
the judges that are still on the bench are implicated, to some extent, in
the practices of the previous regime. The citizenry in such circumstances
have every sociological reason to be suspicious of how those
officials would go about their business. In other words, there exists a
characteristic circumstance of distrust. In fact, there’s actually a secondary
circumstance of distrust arising naturally in post-authoritarian
settings, and that is distrust of the lawmakers as well of the judges. In
such circumstances, there is a natural desire to place both the positive
lawmakers and the law enforcers under constitutional control. The
question is how best to do that.
Broadly speaking, the answer for nations that have adopted constitutional
review is one that was developed after World War I. Hans
Kelsen, an Austrian legal theorist, deserves credit for inventing the
model of constitutional adjudication that has become popular over the
past few decades. Kelsen, an eminent young legal scholar, happened
11. See Pasquale Pasquino, Gardien de la constitution ou justice constitutionnelle?
C. Schmitt et H. Kelsen, in 1789 ET L’INVENTION DE LA CONSTITUTION 141–52
(Michel Troper & Lucien Jaume eds., 1994).
12. See VOLCANSEK, supra note 4, at 15 (Kelsenian model “rejected the US style of R
decentralized judicial review and advocated instead a special institution that alone
held the power of constitutional review”); see also Klaus von Byne, The Genesis of
Constitutional Review in Parliamentary Systems, in CONSTITUTIONAL REVIEW AND
LEGISLATION: AN INTERNATIONAL COMPARISON 21, 29–30 (Christine Landfried
ed.,
1988).
13. Cf. Gardbaum, supra note 6, at 759–60 (noting shift away from American R
model of constitutionalism in British Commonwealth).
52 LEGISLATION AND PUBLIC POLICY [Vol. 6:49
to be a staff member to a committee charged with framing a new constitution,
14 and was asked to draft the section of it dealing with constitutional
review.15 And that draft constitution created a new
institution—a constitutional court of professors—that would have the
power to control ordinary legislation.16
Kelsen recognized the need for an institution with power to control
or regulate legislation. In the case of post-World War I Austria,
the concern was mostly for maintaining federal arrangements, that is,
regulating the relationship between the national and provincial governments.
He recognized, too, that constitutional control essentially
involves legislative activity. He recognized, in other words, that constitutional
adjudication involves legislating as well as judging. The
processes by which constitutional adjudicators make or declare general
rules are different from those employed in ordinary legislatures,
14. See Nicoletta Bersier Ladavac, Hans Kelsen (1881–1973): Biographical Note
and Bibliography, 9 EUR. J. INT’L L. 391, 391–92 (1998); see also Albert A.
Ehrenzweig, Preface, 59 CAL. L. REV. 609, 610 (1971) (acknowledging Kelsen as
principle drafter of Austrian Constitution). Known both as an excellent jurist as well
as an exceptional human being, Hans Kelsen dedicated his life to scholarship and the
development of the law, most notably in the area of International Law. Born in
Prague in 1881, Kelsen later moved with his family to Vienna. In 1906, Kelsen received
a doctorate in law and went on to become a professor, establishing and editing
the Austrian Journal of Public Law. Of Jewish descent, Kelsen was forced to flee to
Geneva in 1933, and navigated Europe’s tumultuous political circumstances to study,
teach, and research the law, often pioneering new concepts in the international arena.
In his early 60s, Kelsen moved to the United States, where he continued to distinguish
himself, including serving as a professor at the University of California, Berkeley, in
the Department of Political Science. Upon his death at the age of 92, his legacy
included the publication of almost 400 works and a career that had not only touched
many, but benefited even more.
15. Clemens Jabloner, Kelsen and His Circle: The Viennese Years, 9 EUR. J. INT’L
L. 368, 374 (1998).
16. Kelsen, supra note 2, at 186; see also Zdzislaw Czeszejko-Sochacki, The Ori- R
gins of Constitutional Review in Poland, 1996 ST. LOUIS-WARSAW TRANSATLANTIC
L.J. 15, 15 (“[T]he European model of judicial review, based on 18th and 19th century
ideals and significantly different from its American archetype, unquestionably
derives from the Austrian Constitutional Court established by the . . . 1920 Austrian
Constitution.”).
Kelsen also earned an important place for himself in the history of his
country as co-drafter of the Austrian Constitution of 1920. . . . Kelsen
developed the theoretical underpinnings of constitutional jurisdiction as a
constitutional option and defended it against the critique of German constitutional
law in particular. . . . As an expert on constitutional law, Kelsen
formulated the sixth main part of the Constitution, which covers the
organization and procedures of the Constitutional Court. Austria thus introduced
a specialized and functional constitutional jurisdiction for the
first time in legal history.
Jabloner, supra note 15, at 374. R
2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 53
and the considerations and arguments taken into account are different,
but constitutional adjudicators are still legislating.
Secondly, Kelsen was of course writing after the age of democratic
revolution. Throughout nineteenth century Europe, a new
model of government had become dominant.17 It was the model in
which the people and their representatives became the sole source of
governmental authority, which we may call the model of parliamentary
sovereignty—one in which the parliament is superior both to the
judiciary and to the executive. In that system, the executive is responsible
directly to the legislature—it remains in office only as long as it
can command a majority in the legislature. And, the job of the judiciary
is to enforce what the legislature mandates.18 This model of parliamentary
sovereignty didn’t succeed everyplace of course; some
nations retained the outward (and sometimes the inward) form of monarchical
or, better, mixed government. Austria, for example, resisted
it until after World War I.
Now, this model is accepted throughout most of Europe, and it
became accepted as well after World War I in Austria, and Kelsen
didn’t wish to undercut it. He did however, want to maintain the place
of the legislature within the new Austrian constitutional system, and
this involved some check on the power of the legislature itself. Kelsen’s
innovation was to invent a new body—a legislative body, a constitutional
court—which stood outside the model of parliamentary
supremacy, and which regulated the product of the legislature. And,
incidentally, as it has come to happen, this body regulates the product
of the rest of the government as well. Insofar as this new body exercises
legislative authority, and insofar as its powers are traceable to
the people (because its members are politically appointed), legislative
authority remains superior to executive and judicial authority. So,
constitutional judges as they function now, in Europe and elsewhere,
regulate legislative production, administrative production, and judicial
action. That is their position. So, this is the new model, the European
17. Cf. Gardbaum, supra note 6, at 713 (“Prior to 1945, the model of legislative R
supremacy, as exemplified not only by the British doctrine of parliamentary sovereignty
but also by the French doctrine that acts of the legislature are the supreme
expression of the peoples’ general will, was the dominant model of constitutionalism
throughout the world, particularly with respect to the issue of individual rights and
civil liberties.”).
18. See id. (“[T]he sovereignty of Parliament means that no court has the power to
question the validity of an Act of Parliament, the supreme law of the land.”); see also
Kelsen, supra note 2, at 185 (“Before the Constitution of 1920 . . . [t]he power of the R
courts to pass on the legality and hence on the constitutionality of ordinances . . . was
not restricted.”).
54 LEGISLATION AND PUBLIC POLICY [Vol. 6:49
model of constitutional adjudication. I think it is useful to think about
it as a new model, because it allows us to see more clearly the attractiveness
of Kelsen’s “solution” to the problem of regulating democratic
processes.
One way to put Kelsen’s key idea is to distinguish between legislation
and a legislature. A legislature is one institution that can produce
legislation—general rules of prospective application. Chris
Eisgruber rightly pointed out that legislation can and does happen all
over government, and there are powerful normative reasons why that
should be the case. Think of heavily technical legislation requiring
special expertise and academic discipline (for example, that kind of
policy made by the Federal Reserve Board). Our politicians, that is,
our legislature (Congress and the President together) have decided that
kind of policy is best hived off away from political processes, given a
high degree of insulation from those processes, and made sensitive to
expert inputs. When economists and bankers, who are professional
economists, are put on that body and insulated from other forces, what
they are doing is legislative in nature, only it is in a specialized institutional
context, a context sensitive to certain kinds of normative arguments
which might not be given enough play in a different kind of
process.
This is a common choice in designing administrative state institutions,
including judicial institutions.19 So, looking at the matter this
way, it suggests that the way Waldron frames the debate in his book,20
and that I think most of the panelists have largely accepted, is not
quite right. It is not a matter of some foreign elite from Mars taking
over the judiciary and imposing itself on a functioning legislature.
19. See Jennifer C. Root, The Commissioner’s Clear Reflection of Income Power
Under § 446(B) and The Abuse of Discretion Standard of Review: Where Has the
Rule of Law Gone, and Can We Get It Back?, 15 AKRON TAX J. 69, 75–76 (2000)
(“The general expansion and complexity of governmental regulation has caused the
legislature to rely on outside expertise in many areas of the law in which the legislature
cannot itself be expert. Congress’ resource limitations make it difficult to efficiently
and effectively legislate meaningful rules. For these reasons, administrative
agencies have been relied upon to take on a large amount of the responsibility for
governmental regulation. The administrative agencies are many times saddled with
vague mandates from the legislature and are asked to perform duties that are a
combination
of rulemaking, enforcement, and adjudication.” (footnotes omitted)); see also
Richard S. Frase, The Role of the Legislature, the Sentencing Commission, and Other
Officials Under the Minnesota Sentencing Guidelines, 28 WAKE FOREST L. REV. 345,
368 (1993) (“The creation of an independent commission to draft sentencing guidelines
has been recognized as having the advantage of allowing sentencing policy to be
more expertly crafted, while insulating the process from the distortion of political
pressures.”).
20. See generally JEREMY WALDRON, LAW AND DISAGREEMENT (1999).
2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 55
Rather, the people, from the standpoint of constitutional design, must
decide how to allocate legislative authority among various governmental
entities. It seems to me a better way to look at the issue: how
shall we, “the people,” organize and distribute legislative power?
How much of it shall be allocated to the parliament, how much to
administrative agencies, how much to judges? And, what are the appropriate
terms of debate that will govern and criticize that allocation?
From this standpoint, we should ask whether there is anything in
Waldron’s book that would preclude the people from making their
choice one of American-style judicial review, or from making the European
choice that I have described above: a specialized body of politically
appointed law professors to control the operation of the ordinary
judiciary, legislature, and administrative state? Should anything cause
us to stand up and say, “No, you can’t do that, you can’t possibly
allocate that portion of legislative authority to this particular institution”?
The answer to this question is not obvious in either case. But,
it does seem to me that the American model is easier to reject on
democratic grounds than the European one.
Waldron’s argument in the book suggests that we might be concerned
that a court, however constituted, lacks democratic pedigree.
But as Chris Eisgruber indicated in his example of the Federal Reserve
Board, democratic pedigree is a complex issue when considering the
exercise of legislative power. In practice, the people themselves may
very well think it undesirable to have a democratic pedigree when it
comes to occupying a seat on the Federal Reserve Board. They might
decide that fourteen years is good term length, and that not all appointments
should be made by elected politicians, and that meetings ought
to be closed to the public and proceedings kept secret. They might
accept these strictures to ensure what they see as an appropriate
amount of insulation, so that the institution will be more likely to act
as the people would want it to over the long run. In other words, the
people may very well choose, through ordinary statutes, to establish
an insulated institution. Whether they are right to do so or not is an
issue of comparative institutional performance. Does the central bank,
so constituted, operate better or worse than a less insulated institution?
By the same token, it’s not so clear that there is a reason to argue
against the people choosing to allocate insulated authority of this kind
to judges. They might choose to do so through ordinary statutes—as
when they create new federal courts, or enlarge their jurisdictions.21
21. See, e.g., U.S. CONST. art. III, § 1 (authorizing Congress to establish isolated
federal courts, members of which “shall hold their Offices during good Behaviour,
56 LEGISLATION AND PUBLIC POLICY [Vol. 6:49
Or the people may resort to constitutional innovations to achieve the
same purposes. Either way, in republican government, this is a choice
made by the people to regulate their own political processes.
I doubt that the issue as to how the people ought to allocate legislative
authority is going to be settled in the abstract. Rather, this issue
is more appropriately decided—insofar as it is settled at any moment
in time—by making practical judgments about how different institutions
function. Which institutions are doing a good job? Which aren’t
doing a good job? What’s a good reform to try? Of course, people
won’t agree on the answers to these questions—that’s why they need
to be settled politically. That is the way I understand the European
choice to reject the American model of judicial review in favor of the
Kelsenian model. What has spread like wildfire, at least after the collapse
of authoritarian regimes, is the idea that there ought to be some
checking institution that stands over the actual legislature, and over
the government, and especially, over the judiciary.
So, this is a valuable feature that many democracies seem to have
embraced from very different paths, and we need to respect that. But
we should also recognize that different nations have made very different
choices as to how to check the legislature. And, as I have argued,
the Europeans have rejected the American model of judicial review in
favor of another, Kelsenian, model. The European model differs from
the American one in several respects.
First, one feature of these constitutional courts, not true of the
American judiciary, is that they do not give lifetime tenure to new
judges.22 They provide long terms, but rarely permit reappointment.
So, basically, a judge will serve for ten years, nine years, seven years,
some relatively longish term and then leave the court.23 Because
and shall, at stated Times, receive for their Services, a Compensation, which shall not
be diminished during their Continuance in Office”).
22. Rett R. Ludwikowski, Constitutional Culture of the New East-Central European
Democracies, 29 GA. J. INT’L & COMP. L. 1, 24 (2000) (“[I]n Bulgaria,
Romania, Lithuania, and Hungary justices are elected for nine years, in Albania for
two years, in Belarus for eleven years, in the Czech Republic and Ukraine for ten
years, and in Slovakia for seven years; in Poland, the tenure of justices was eight
years, and was extended by the 1997 Constitution to nine years.”); see also Ryszard
Cholewinski, The Protection of Human Rights in the New Polish Constitution, 22
FORDHAM INT’L L.J. 236, 286–87 (1998) (Polish Constitutional Tribunal judges may
only serve one term); Amy J. Weisman, Comment, Separation of Powers in Post-
Communist Government: A Constitutional Case Study of the Russian Federation, 10
AM. U. J. INT’L L. & POL’Y 1365, 1391 (1995) (twelve year term for Russian
Constitutional
Court judges).
23. See Ludwikowski, supra note 22.
2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 57
there’s no question of seeking reappointment, judges have no particular
reason to kowtow to those in power.
Second, while these judges are appointed politically (as are those
in the United States), these appointments tend to be made in a way
that requires assent by the majority political factions. For example, to
get appointed to the German Federal Constitutional Court, a prospective
justice must garner the votes of two thirds majorities in both
chambers of parliament (Bundestag and Bundesrat). Thus, all the major
political formations must agree on a new appointment. As a result,
nearly all of the constitutional judges tend to have moderate judicial
viewpoints.
Contrast that with the American system. We have a system in
which, some guy might happen to be elected by the voters of, let’s
say, Florida, and then he takes office. Actually, not even the voters,
the counters of Florida [laughter]. And as long as the president has a
majority in the Senate, he has a pretty good chance of getting an appointment
on the Supreme Court who was acceptable only to the
members of his own party (so long as the other party didn’t have the
spine to actually filibuster). The American process will therefore result
in Justices pretty far in viewpoint from the “median” Senator. In
other words, American court appointments can be fairly extreme,
ideologically or jurisprudentially. Justices may be appointed who are
acceptable only to the Republicans or only to the Democrats.
Third, because of fixed terms, European constitutional judges retire
regularly. You don’t get a situation where, as with Jimmy Carter,
there were no Supreme Court appointments.24 The makeup of the European
courts tends to track election returns more closely than the
makeup of the American courts does. There is less possibility of a
drift of the court away from where the political branches are. There is
much to be said, I think, for the European practices. Even if we’re
going to have judicial review, it seems a good idea to move in the
direction of the European processes.
A fourth special aspect of the American style of judicial review is
that any judge can review statutes. A municipal court judge in Poughkeepsie—
no problem; she can simply strike down the law. That’s ex-
24. Carter served from 1977–81, but did not appoint any Supreme Court Justices, as
none retired during that period. President Gerald Ford appointed John Paul Stevens,
who began serving on December 19, 1975, and the next person elevated to the
Supreme
Court was Sandra Day O’Connor, appointed by President Reagan, who ascended
to the Court on September 25, 1981. See MEMBERS OF THE SUPREME COURT
OF THE UNITED STATES, available at http://a257.g.akamaitech.net/7/257/2422/
14mar20010800/www.supremecourtus.gov/about/members.pdf (last visited Nov. 17,
2002).
58 LEGISLATION AND PUBLIC POLICY [Vol. 6:49
actly what the Europeans didn’t want: Of course, ordinary judges in
Europe are appointed and promoted bureaucratically, by competitive
examination.25 In many countries, as in Italy, there is almost no exterior
influence at all, it’s automatic.26 They are bureaucratic appointments,
with no incentives to be responsive to politicians in place.
Judges are really just civil servants who join the judiciary right out of
law school and remain within it throughout their careers, and are
therefore very insulated. So perhaps it is not surprising that Europeans
are suspicious of judicial review when, in their systems, that review
can be exercised by a twenty-five year old with a fresh law
degree.
And fifth, the United States has an extremely rigid Constitution.
It is surely more difficult to amend than any other national constitution.
27 Europeans have rejected that aspect of American experience as
well. They have opted, instead, for more flexible constitutions and for
specialized constitutional courts made up of judicial moderates, with
limited tenures. Their courts tend to work in closed proceedings, more
or less by consensus, without frequent dissenting opinions. Their justices
are seldom public figures with articulated public identities and
recognizable voices. They are rarely ideological apologists. The European
rather than the American model seems to me to be the choice that
future constitutional democracies will tend to make. In that model, the
25. See, e.g., Maria Dakolias and Kim Thachuk, Attacking Corruption in the Judiciary:
A Critical Process in Judicial Reform, 18 WIS. INT’L L.J. 353, 395 (2000) (“In
Germany and France, exams are required to become a judge and French judges most
often come from the Judicial School.”); Jason Marin, Invoking the U.S. Attorney-Client
Privilege: Japanese Corporate Quasi-Lawyers Deserve Protection in U.S. Courts
Too, 21 FORDHAM INT’L L.J. 1558, 1574 n.97 (1998) (“Judges in civil law countries
have little or no advocacy experience. Instead they are appointed as judges directly
out of law school or equivalent educational body. Civil law countries include France,
Italy, Spain, Belgium, and countries that were their colonies, including those in Latin
America, South America, and French Africa. Germanic countries such as Germany,
Austria, and the Netherlands are also civil law countries.” (citations omitted)).
26. See, e.g., K.D. Ewing, A Theory of Democratic Adjudication: Towards a
Representative,
Accountable and Independent Judiciary, 38 ALBERTA L. REV. 708, 720
(2000) (“In Italy as in other countries, graduates may choose a judicial career, perhaps
an unusual arrangement for those of us schooled in the common law. There, graduates
enter the magistracy as a career, having sat and passed the entrance examinations.
Entrants must be over 21 but younger than 40. Once in the system they move
automatically
through the various stages—Tribunale, corte d’appello, and Cassazione—
as they become more experienced.”).
27. See U.S. CONST., art. V (amendments can be proposed by two thirds of both
Houses or by the legislatures of two thirds of the states calling for a constitutional
convention. In order for an amendment to be adopted, it must be ratified by three
fourths of the states.); STONE, ET AL., CONSTITUTIONAL LAW, 72–75 (4th ed. 2001)
(“[M]any nations allow constitutional amendment through a process that is far less
arduous than the American one . . . .”).
2002] CONSTITUTIONAL REVIEW IN THE GLOBAL CONTEXT 59
tensions between democracy and legality that Waldron emphasizes in
his book are much less sharply drawn.
We could fruitfully pay some attention to these European examples.
I think, for example, that the American prescription of lifetime
tenure for judges is not such a great answer. I don’t think I have time
to go into great detail about this. But I want to make the following
simple distinction. From my point of view, judges do two things.
First, they decide cases between particular litigants. That is, they
judge disputes. Second, they produce general rules or legislation. The
first function—deciding disputes among litigants—requires a pretty
high degree of insulation. It is not so obvious, however, that the second
lawmaking function requires or justifies the same degree of insulation.
Of course, these two functions are commingled. Judges make
law while deciding disputes; that is what makes the institutional design
question hard.
Paying attention to the European model would also help us to
think critically about how widely we really want judicial review authority
to be distributed in the judiciary. Maybe the Europeans are
right about restricting it more than we do and organizing its exercise
differently. And maybe we ought to think differently about the modes
of protection of judges, if we’re going to have a system of constitutional
review. On the other hand—this is not so much a criticism of
American judicial practice, it’s a matter of saying that we should pay
attention to what has gone on in the world in terms of constitutional
adjudication, and recognize that our system is but one way, among
others, to implement this idea. Our people have every right to have
chosen the institutions and practices that we have chosen. But I think
we should probably be willing to learn from the experience of others,
other countries, other nations, other peoples of the world, and maybe
realize that our system can be improved to make it more responsive to
democratic forces than is currently the case.

Doctrine Of Separation Of Powers And Working Of Three Organs Of The State

Introduction

Cases have been reportedly coming up where judges were unjustifiably trying to
perform executive or judicial functions. This is clearly unconstitutional. In the name of
judicial activism judges can not cross their limits and try to take over their functions
which belong to other organs of the state. There is no liberty if the judicial powers be not
separated from the legislative, were it joined with the legislature the life and liberty of the
subject would be expose to arbitrary control: for the judge would be then the legislature,
were it joined to the executive powers the judge might behave with violence and
oppression.

Therefore in the light of this context it is desirable to analyze the concept of

separation of powers and its application in various legal systems around the globe.
Normally under any constitution, the legislature, the executive and the judiciary all have
their own broad spheres of operation. Ordinarily it is not proper for any of these three
organs of the state to encroach upon the domain of another, otherwise the delicate
balance in the constitution will be upset and there will be a reaction. Judges must know
there limits and must not try to run the Government. They must have modesty and
humanity and not behave like emperors. There to put check and balances on every
organs of the state it is necessary to demarcate the powers of three branches of the
Government. i.e. legislature, judiciary and executive. Theory of separation of powers
was propounded and popularized by the French political analyst Montesquieu. 1 It
provides the vesting of judicial, executive and legislative functions in three separate
organs of the Government. It contemplates an absence of overlapping of these separate
organs of the Government.inn modern times it has been substituted by more flexible
theory i.e. the theory of check and balances. The theory of separation of powers
signifies three formulations of governmental powers. 2

 The same person should not form part of more than one of the three organs of
the Govt. i.e. ministers should not be sit in to the parliament.
 One organ should not interfere with any other organ of the Govt. i.e. policies
formed by the executives must not be intervened by the judiciary.

 One organ of Govt. should not exercise the functions assign to any other organ
i.e. law making must not be done by the executives.

However the effective implementation of this doctrine is not possible in modern days in
view of growth of delegated legislation and administrative tribunals.

Comparative perspective

British Constitution

It can be seen from British constitutional convention that, the king who is an
executive head is also an integral part of the legislature and all his ministers are
members are parliament. The Lord Chancellor is a member of the House of Lords,
member of the Govt. and at the same time a senior most member of the judiciary. The
judiciary is independent but the judges of the superior courts can be removed on an
address from both the houses of parliament. The House of Lords exercises both judicial
and legislative functions the courts can apply and interpret the laws made by legislature 3
Thus we can say that there is no effective separation of powers between the three
organs of the Government.
Constitution of U.S.A

According to US constitution all legislative powers vest in congress, all executive

powers vest in the president, and all judicial powers vest in the supreme court. However
still there is no separation of powers, because o the following features like,

 President has the power to override the legislation passed by the congress by
veto4.
 The power of the senate to confirm the appointments made by the president or to
reject the same5.

 Power of the Supreme Court to review the act of the congress and the president 6.

Therefore in the above context to secure the independence of the judiciary it is

necessary to remove it from the political or administrative process. However the
constitutional trade-off for independence is that judges must restrain themselves from
the areas reserved for other branches. Thus judicial restraint contemplates the twin
overreaching values of the separation of powers and independence of judiciary. In
Lochner v. New York7 Justice Holmes of the US Supreme Court in his dissenting
judgment criticized the majority of the court for becoming a super legislature by
intervening in to policy decision of the Govt. similarly in his dissenting judgment in
Grisswold v. Connecttcut8 Mr. Justice Hugo Black warned that unbounded judicial
authority would make of these courts members day-to-day constitutional conventions.

During the era of Franklin Roosevelt when he was president the country was
passing through a terrible economic crises, to overcome this, President Roosevelt
initiated a series of legislation called the New Deal, which were mainly economic
regulatory measures. When these were challenged in the US Supreme Court the courts
begins striking them down on the ground that they violated the due process clause in
the US Constitution. As a reaction, President Roosevelt proposes to reconstitute the
court with six more judges to be nominated by him. This threat was found to be enough
and it was not necessary to carry it out. The court thereafter suddenly changed its
approach and began upholding the laws 9. The moral of this story is if the judiciary does
not exercise restraint and overstretches its limits there is bound to be a reaction from
politician and others. The politician will then step in and curtail the powers, or even the
independence, of the judiciary. The judiciary should, therefore confine itself to its proper
sphere, realizing that in a democracy many matters and controversies are best resolved
in non-judicial setting.10

Indian Scenario

Apart from the directive principles laid down in Part-IV of the constitution which provides
for separation of judiciary from the executive, the constitutional scheme does not
provide any formalistic division of powers.11 The Supreme Court observed that the
Indian constitution has not recognized the doctrine of separation of powers. In Indira
Nehru Gandhi v.Raj Naryan12 chief Justice Ray observed that, Indian constitution
recognizes the theory of separation of powers in broad sense only. however prior to that
In Keshvanand Bhari v. State of Kerla13out of thirteen judges justice Beg held that
separation of power is a part of basic structure of the constitution, however it was not
approved by the other judges or in subsequent cases by the Supreme Court.

In Ram Jawaya Kapoor v. State of Punjab14the Indian constitution had not indeed
recognized the doctrine of separation of powers in its absolute rigidity but the functions
of different parts or branches of the Govt. have been sufficiently differentiated and
consequently it can very well be said that our constitution does not contemplate
assumption, by one organ or part of the state, of functions that essentially belongs to
another. Similarly in Asif hamid v. state of Jammu & Kashmir15 Legislature, executive
and judiciary have to function within their own sphere as demarcated under the
constitution. No organ can usurp the functions assigned to another. The functioning of
the democracy depends upon the strength and independence of each of its organs.
Judicial review is a powerful weapon to restrain unconstitutional exercise of power by
the legislature and executive. However the only check on judicial power is the self-
imposed discipline of judicial restraint. Therefore this doctrine cannot be liberally applied
to any modern government, because neither the powers can be kept in water tight
compartments nor can any government can run on strict separation of powers.
Nowadays this doctrine is shaken by the judicial review and judicial activism. Recently
the Maharashtra government passed a regulation for the increase of result of S.S.C.
students and to curb the menace of students suicide in he wake of unexpected results,
it provides for the “Best of five’ formula according to which the percentage of the
students are to be calculated on the basis of only those five subjects in which the
students have secured the maximum marks. This regulation was challenged by the
parents of the student who were studying in the C.B.S.E. and I.C.S.E. Boards, providing
education in Maharashtra state in the High court of Bombay on the ground of violation of
fundamental rights i.e. right to equality. High court rejected the formula of “best of five”
holding the classification between students of S.S.C. and C.B.S.E. as unreasonable and
contrary to the principle of equality16 here court intervene in the policy decision of the
government, government again approached to the supreme court for appeal against the
order of high court and the supreme court modified the order of High court and in its
interim order and directed the Government to apply the alleged rule for both the
students of S.S.C. and I.C.S.E. 17 In such kind of cases court must have to exercise a
self imposed restraint. Because the statement of marks are already distributed among
the students and now it is not practically possible to deduct those marks or to prepare a
fresh statement of marks, therefore High court ought to have apply the doctrine of
prospective overruling. Which was earlier applied by the supreme court in Golaknath
v.State of punjab18 in this case the policy of the govt. to distribute the lands under land
reform scheme was challenged before the supreme court on the ground of violation of
fundamental right19 Justice Subba Rao of the supreme court held such distribution of
land as unconstitutional but apply its decision prospectively and stated that it is not
practically possible to collect the land which are already distributed to the farmers or for
the welfare of the state therefore it is desirable in the interest of justice to apply the
decision with prospect5ive effect and held that after the date of this decision
government cannot acquire the property of any person and parliament doesn’t have the
power to amend the fundamental right. Similarly in Suman Gupta v. State of Jammu
and Kashmir20 The respective state government reserved certain seats in medical
colleges for the students residing in the particular state on reciprocal basis, this policy of
state was challenged on the ground that it discriminate among the students on the
ground of place of birth21 The supreme court rejected the policy on the ground of
discrimination but meanwhile the students who are the beneficiaries of this policy had
completed their substantial education, and now it is not in the interest5 of justice to
cancelled their admission, therefore here also supreme court applied the doctrine of
prospective overruling and held that the government must not apply the impugned
policy from next academic year.

Therefore by using the doctrine of prospective overruling in the above to cases

Supreme court maintained the balance between judiciary and other organs of the
government. It can also be maintained by using the self restraint by the judges. In
Divisional Manager, Aravali Golf club v. Chander Hass and Another 22Supreme court
warned the High court for its over activism. The appellant in the present case appointed
the respondents as malis on daily wages, subsequently they were asked to perform the
duties of tractor drivers, though there was no post of tractor drivers in the establishment.
They were continued to be paid wages for the post of mail .after A few years appellant
started paying them wages of tractor driver on daily wage basis. Though they continued
to work for about a decade as tractor drivers, their services were regularized against the
post of mail and not as tractor driver. The respondents then filed a civil suit claiming
regularization against the post of tractor driver. The appellant contested the suit on the
ground inter alia; that there was no sanctioned post off tractor driver hence there was no
question of appointing the plaintiff on the post of tractor driver accepting that plea the
trial court dismissed the suit.

However the first appellate court reversed the order of trial court and directed the
defendants to get the post of tractor driver sanctioned and to regularize the plaintiff on
that post. A single judge of high court upheld the judgment of the first appellate court.
The appellant club then filed the appeal before Supreme Court by special leave before
the Supreme Court the club submitted that there was no post of tractor driver, and
therefore, there was no question of regularizing the respondents in the said post.
Allowing the appeal the Supreme Court held that since there was no sectioned post of
tractor driver against which the respondents could be regularized as tractor driver, the
direction of the first appellate court and the single judge to create the post of tractor
driver and regularizing he services was completely beyond their jurisdiction. The court
cannot direct the creation of post. Creation and sanction of post is a prerogative of the
executive or legislative authorities and the court cannot arrogate to itself this purely
executive or legislative function, and direct creation of posts in any organization. The
court further said that the creation of a post is an executive or legislative function and it
involves economic factors. Hence, the courts cannot take upon themselves the power of
creation of post. similarly In Madhu Holmagi v. Union of India23wherein one Advocate
filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear
treaty proposed to be entered by the Indian government, petitioner contended that court
must have to scrutinize the all documents relating to the agreement123 and must have
to prevent the Indian government from entering in to the nuclear deal. In this court
dismissed the petition and also imposed a cost of Rs 5000 on the petitioner stating that
it is an abuse of court proceeding. Because the question raised by the petitioner is a
question of policy decision, which is to be decided by the parliament and not by the
judiciary.

Conclusion

Constitution of India provides for the establishment of three organs i.e. judiciary,
executive, and legislature each organ has its own area of functioning. However
constitution does which organ is superior to another, in this context the relation between
judiciary, executive, and legislature became complex from last few decades. The
legislature and judiciary are acting like an assembly and they want supremacy over
each other, it should be noted that the absolute balance of powers between the different
organs of the government is an impracticable thing in practice and the final say must
belong to one of them. The constitution of India tried to adopt the middle path between
the American system of judicial supremacy and the English principle of parliamentary
supremacy. For this judiciary was empowered with power of judicial review, so that it
can determine the constitutionality of executive and legislative actions but at the same
time the judiciary was not empowered to review wisdom of legislative and executive
policies.
1 Judicial Activism In India: G.B. Reddy : Gogia Law Agency: Hydrabad: First Ed:2001

2 See infra note 20

3 Principles of Administrative Law: M.P. Jain& S.N .Jain: Wadhwa Nagpur :Fifth Ed.
2007

4 Article.1 Scetion.1 of the U.S. Constitution

5 Article.1 Scetion.2 of the U.S. Constitution

6 Article.1 Scetion.3 of the U.S. Constitution

7 198 US 45(1905)

8 38US479:14 L Ed 2d 510 (1965)

9 Divisional Manager, Aravali Golf club v. Chander Hass and Another 2008(1)SCC683
at para37

10 Ibid at para-38

11 Article-50 of Constitution of India, The state shall take steps to separate the judiciary
from the executive in the public services of the state.

12 AIR 1975 SC 2299

13 AIR 1973 SC 1469

14 AIR 1955 SC 549

15 AIR 1989 SC 1899

16 Times of India 14/7/2010 at p.1

17 ibid

18 AIR 1967 SC 1643

19 Right to property was a fundamental right under Article 19 (1) (f) at the time when
Golaknath v. state of Punjab was decided . which was later on repealed by 44 th
constitutional amendment in the year 1978

20 AIR 1983 SC 1235

21 Article 15(1) The state shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them

22 2008(1)SCC 683

23 2008(6) ALL MR 94

Rule of law
From Wikipedia, the free encyclopedia

Mosaic representing both the judicial and legislative aspects of law. Woman on throne
holds sword to chastise the guilty and palm branch to reward the meritorious. Glory
surrounds her head, and the aegis of Minerva signifies armor of righteousness and
wisdom.[1]

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v·d·e

The rule of law is a legal maxim which provides that no person is above the law, that
no one can be punished by the state except for a breach of the law, and that no one can
be convicted of breaching the law except in the manner set forth by the law itself. The
rule of law stands in contrast to the idea that the leader is above the law (rex lex), a
feature of Roman Law, Nazi law, and certain other legal systems.

The phrase has been used since the 17th century, but the concept is older. For
example, the Greek philosopher Aristotle said, "Law should govern".[2]

One way to be free from the rule of law is by denying that an enactment has the
necessary attributes of law. The rule of law has therefore been described as "an
exceedingly elusive notion"[3] giving rise to a "rampant divergence of understandings". [4]

At least two principal conceptions of the rule of law can be identified: a formalist or "thin"
and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule
of law do not make a judgment about the "justness" of law itself, but define specific
procedural attributes that a legal framework must have in order to be in compliance with
the rule of law. Substantive conceptions of the rule of law go beyond this and include
certain substantive rights that are said to be based on, or derived from, the rule of law. [5]
Contents
[hide]

 1 History
o 1.1 Antiquity

o 1.2 Middle ages

o 1.3 Modern times

 2 Categorization of interpretations
 3 Status in various jurisdictions
o 3.1 United States

o 3.2 Asia

 4 Organizations and scholarly works

o 4.1 International Commission of Jurists

o 4.2 United Nations

o 4.3 International Bar Association

o 4.4 World Justice Project

o 4.5 Albert Dicey

o 4.6 Joseph Raz

 5 In relation to economics
 6 In schools
 7 In conflict with natural law
 8 See also
 9 Notes

 10 External links

[edit] History

Although credit for popularizing the expression "the rule of law" in modern times is
usually given to A. V. Dicey,[6][7] development of the legal concept can be traced through
history to many ancient civilizations, including Ancient Greece, Ancient China, ancient
Mesopotamia, and Ancient Rome.[citation needed]
[edit] Antiquity

In Western philosophy, the Ancient Greeks initially regarded the best form of
government as rule by the best men, such as Plato's idealized philosopher king.[8] Plato
nevertheless hoped that the best men would be good at respecting established laws,
and he explained why:

Where the law is subject to some other authority and has none of its own, the collapse
of the state, in my view, is not far off; but if law is the master of the government and the
government is its slave, then the situation is full of promise and men enjoy all the
blessings that the gods shower on a state. [9]

More than Plato attempted to do, Aristotle flatly opposed letting the highest officials
wield power beyond guarding and serving the laws. [8] In other words, Aristotle advocated
the rule of law:

It is more proper that law should govern than any one of the citizens: upon the same
principle, if it is advantageous to place the supreme power in some particular persons,
they should be appointed to be only guardians, and the servants of the laws. [2]

According to the Ancient Roman statesman Cicero, "We are all servants of the laws in
order that we may be free."[10] During the Roman Republic, controversial magistrates
might be put on trial when their terms of office expired. Under the Roman Empire, the
sovereign was personally immune (legibus solutus), but those with grievances could
sue the treasury.[6]

In Ancient China, members of the school of legalism during the 3rd century BC argued
for using law as a tool of governance, but they promoted "rule by law" as opposed to
"rule of law", meaning that they placed the highest officials above the law. [11][12][13][14] In
contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural
law that even the ruler would be subject to.[15]

[edit] Middle ages

In Islamic jurisprudence rule of law was formulated before the twelfth century, so that no
official could claim to be above the law, not even the caliph.[16] However, this was not a
reference to secular law, but to Islamic religious law in the form of Sharia law.

In 1215 AD, a similar development occurred in England: King John placed himself and
England's future sovereigns and magistrates at least partially within the rule of law, by
signing Magna Carta.[17]

[edit] Modern times

In a petition to James I of England in 1610, the House of Commons said:

Amongst many other points of happiness and freedom which your majesty's subjects of
this kingdom have enjoyed under your royal progenitors, kings and queens of this
realm, there is none which they have accounted more dear and precious than this, to be
guided and governed by the certain rule of the law which giveth both to the head and
members that which of right belongeth to them, and not by any uncertain or arbitrary
form of government....[18]

Among the first modern authors to give the principle theoretical foundations was Samuel
Rutherford in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the
traditional rex lex ("the king is the law"). John Locke also discussed this issue in his
Second Treatise of Government (1690). Later, the principle was further entrenched by
Montesquieu in The Spirit of the Laws (1748).[19]

In 1776, the notion that no one is above the law was popular during the founding of the
United States, for example Thomas Paine wrote in his pamphlet Common Sense that
"in America, the law is king. For as in absolute governments the King is law, so in free
countries the law ought to be king; and there ought to be no other." [20] In 1780, John
Adams enshrined this principle in the Massachusetts Constitution by seeking to
establish "a government of laws and not of men." [21]

[edit] Categorization of interpretations

Different people have different interpretations about exactly what "rule of law" means.
According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has
become meaningless thanks to ideological abuse and general over-use", but
nevertheless this phrase has in the past had specific and important meanings. [22] Among
modern legal theorists, most views on this subject fall into three general categories: the
formal (or "thin") approach, the substantive (or "thick") approach, and the functional
approach.[23][24]

The "formal" interpretation is more widespread than the "substantive" interpretation, and
formalists hold that the law must be prospective, well-known, and have characteristics
of generality, equality, and certainty. Other than that, the formal view contains no
requirements as to the content of the law.[23] This formal approach allows laws that
protect democracy and individual rights, but recognizes the existence of "rule of law" in
countries that do not necessarily have such laws protecting democracy or individual
rights. The substantive interpretation holds that the rule of law intrinsically protects
some or all individual rights.

In addition to the formal and substantive interpretations of the term "rule of law", another
interpretation is the functional definition, which is consistent with the traditional English
meaning that contrasts the "rule of law" with the "rule of man."[24] According to the
functional view, a society in which government officers have a great deal of discretion
has a low degree of "rule of law", whereas a society in which government officers have
little discretion has a high degree of "rule of law". [24] The rule of law is thus somewhat at
odds with flexibility, even when flexibility may be preferable. [24]
The ancient concept of rule of law can be distinguished from rule by law, according to
political science professor Li Shuguang: "The difference....is that under the rule of law
the law is preeminent and can serve as a check against the abuse of power. Under rule
by law, the law can serve as a mere tool for a government that suppresses in a legalistic
fashion."[25]

[edit] Status in various jurisdictions

The rule of law has been considered as one of the key dimensions that determine the
quality and good governance of a country.[26] Research, like the Worldwide Governance
Indicators, defines the rule of law as: "the extent to which agents have confidence and
abide by the rules of society, and in particular the quality of contract enforcement, the
police and the courts, as well as the likelihood of crime or violence." [26] Based on this
definition the Worldwide Governance Indicators project has developed aggregate
measurements for the rule of law in more than 200 countries, as seen in the map below.
[27]

[edit] United States

2005 map of Worldwide Governance Indicators, which attempts to measure the extent
to which agents have confidence in and abide by the rules of society. Colors range from
dark green (90th-100th percentile) to light green (75th-90th percentile), yellow (50th-
75th percentile), orange (25th-50th percentile), pink (10th-25th percentile) and red (0th-
10th percentile). Percentile rank indicates the percentage of countries worldwide that
rate below the selected country.

All government officers of the United States, including the President, the Justices of the
Supreme Court, and all members of Congress, pledge first and foremost to uphold the
Constitution. These oaths affirm that the rule of law is superior to the rule of any human
leader.[28] At the same time, the federal government does have considerable discretion:
the legislative branch is free to decide what statutes it will write, as long as it stays
within its enumerated powers and respects the constitutionally protected rights of
individuals. Likewise, the judicial branch has a degree of judicial discretion,[29] and the
executive branch also has various discretionary powers including prosecutorial
discretion.

Scholars continue to debate whether the U.S. Constitution adopted a particular

interpretation of the "rule of law," and if so, which one. For example, Law Professor
John Harrison asserts that the word "law" in the Constitution is simply defined as that
which is legally binding, rather than being "defined by formal or substantive criteria," and
therefore judges do not have discretion to decide that laws fail to satisfy such unwritten
and vague criteria.[30] Law Professor Frederick Mark Gedicks disagrees, writing that
Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed
that an unjust law was not really a law at all.[31]

James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be
unjust, may be unwise, may be dangerous, may be destructive; and yet not be so
unconstitutional as to justify the Judges in refusing to give them effect." George Mason
agreed that judges "could declare an unconstitutional law void. But with regard to every
law, however unjust, oppressive or pernicious, which did not come plainly under this
description, they would be under the necessity as judges to give it a free course." [32]

[edit] Asia

East Asian cultures are influenced by two schools of thought, Confucianism, which
advocated good governance as rule by leaders who are benevolent and virtuous, and
Legalism, which advocated strict adherence to law. The influence of one school of
thought over the other has varied throughout the centuries. One study indicates that
throughout East Asia, only South Korea, Japan, Taiwan and Hong Kong have societies
that are robustly committed to a law-bound state. [33] According to Awzar Thi, a member
of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and
most of Asia is weak or nonexistent:

Apart from a number of states and territories, across the continent there is a huge gulf
between the rule of law rhetoric and reality. In Thailand, the police force is an organized
crime gang. In Cambodia, judges are proxies for the ruling political party….That a judge
may harbor political prejudice or apply the law unevenly are the smallest worries for an
ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the
evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be
poisoned in prison? Will my case be completed within a decade? [34]

In countries such as China and Vietnam, the transition to a market economy has been a
major factor in a move toward the rule of law, because a rule of law is important to
foreign investors and to economic development. It remains unclear whether the rule of
law in countries like China and Vietnam will be limited to commercial matters or will spill
into other areas as well, and if so whether that spillover will enhance prospects for
related values such as democracy and human rights. [35]. The rule of law in China has
been widely discussed and debated by both legal scholars and politicians in China.

In India, the longest constitutional text in the history of the world has governed that
country since 1950. Although the Constitution of India may have been intended to
provide details that would limit the opportunity for judicial discretion, the more text there
is in a constitution the greater opportunity the judiciary may have to exercise judicial
review.[36] According to Indian journalist Harish Khare, "The rule of law or rather the
Constitution [is] in danger of being supplanted by the rule of judges." [37]

Japan had centuries of tradition prior to World War II during which there were laws, but
they were not a central organizing principle for society, and they did not constrain the
powers of government. As the twenty-first century began, the percentage of people who
were lawyers and judges in Japan remained very low relative to western Europe and the
United States, and legislation in Japan tended to be terse and general, leaving much
discretion in the hands of bureaucrats. [38]

[edit] Organizations and scholarly works

Many organizations and scholars have advocated for the rule of law, and have taken
positions regarding which interpretation of that concept they prefer.

[edit] International Commission of Jurists

In 1959, an international gathering of over 185 judges, lawyers, and law professors from
53 countries, meeting in New Delhi and speaking as the International Commission of
Jurists, made a declaration as to the fundamental principle of the rule of law. This was
the Declaration of Delhi. They declared that the rule of law implies certain rights and
freedoms, that it implies an independent judiciary, and that it implies social, economic
and cultural conditions conducive to human dignity. The Declaration of Delhi did not,
however, suggest that the rule of law requires legislative power to be subject to judicial
review.[39]

[edit] United Nations

The Secretary-General of the United Nations defines the rule of law as:[40]

a principle of governance in which all persons, institutions and entities, public and
private, including the State itself, are accountable to laws that are publicly promulgated,
equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires, as well, measures to
ensure adherence to the principles of supremacy of law, equality before the law,
accountability to the law, fairness in the application of the law, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness and
procedural and legal transparency.

The General Assembly has considered rule of law as an agenda item since 1992, with
renewed interest since 2006 and has adopted resolutions at its last three sessions. [41]
The Security Council has held a number of thematic debates on the rule of law, [42] and
adopted resolutions emphasizing the importance of these issues in the context of
women, peace and security,[43] children in armed conflict,[44] and the protection of
civilians in armed conflict.[45] The Peacebuilding Commission has also regularly
addressed rule of law issues with respect to countries on its agenda. [46]

[edit] International Bar Association

The Council of the International Bar Association passed a resolution in 2009 endorsing
a substantive or "thick" definition of the rule of law: [47]

An independent, impartial judiciary; the presumption of innocence; the right to a fair and
public trial without undue delay; a rational and proportionate approach to punishment; a
strong and independent legal profession; strict protection of confidential
communications between lawyer and client; equality of all before the law; these are all
fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials;
indefinite detention without trial; cruel or degrading treatment or punishment;
intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law
is the foundation of a civilised society. It establishes a transparent process accessible
and equal to all. It ensures adherence to principles that both liberate and protect. The
IBA calls upon all countries to respect these fundamental principles. It also calls upon its
members to speak out in support of the Rule of Law within their respective communities.

[edit] World Justice Project

As used by the World Justice Project —a non-profit organization committed to

advancing the rule of law around the world— the rule of law refers to a rules-based
system in which the following four universal principles are upheld: [48]

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including
the security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is
accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators,
attorneys or representatives, and judicial officers who are of sufficient number, have
adequate resources, and reflect the makeup of the communities they serve.

The World Justice Project has developed an Index to measure the extent to which
countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed
of 10 factors and 49 sub-factors, and covers a variety of dimensions of the rule of law —
such as whether government officials are accountable under the law, and whether legal
institutions protect fundamental rights and allow ordinary people access to justice. [49]

[edit] Albert Dicey

British jurist A. V. Dicey popularized the phrase "rule of law" in 1885. [6][50] Dicey
emphasized three aspects of the rule of law: (1) no one can be punished or made to
suffer except for a breach of law proved in an ordinary court; (2) no one is above the law
and everyone is equal before the law regardless of social, economic, or political status;
and (3) the rule of law includes the results of judicial decisions determining the rights of
private persons.[51]

[edit] Joseph Raz

In 1977, the influential political theorist Joseph Raz identified several principles that may
be associated with the rule of law in some (but not all) societies. [52] Raz's principles
encompass the requirements of guiding the individual's behaviour and minimizing the
danger that results from the exercise of discretionary power in an arbitrary fashion, and
in this last respect he shares common ground with the constitutional theorists A. V.
Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows:

 That laws should be prospective rather than retroactive.

 Laws should be stable and not changed too frequently, as lack of awareness of
the law prevents one from being guided by it.
 There should be clear rules and procedures for making laws.
 The independence of the judiciary has to be guaranteed.
 The principles of natural justice should be observed, particularly those
concerning the right to a fair hearing.
 The courts should have the power of judicial review over the way in which the
other principles are implemented.
 The courts should be accessible; no man may be denied justice.
 The discretion of law enforcement and crime prevention agencies should not be
allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular
circumstances of different societies, whereas the rule of law generally "is not to be
confused with democracy, justice, equality (before the law or otherwise), human rights
of any kind or respect for persons or for the dignity of man". [52]
[edit] In relation to economics

One important aspect of the rule-of-law initiatives is the study and analysis of the rule of
law’s impact on economic development. The rule-of-law movement cannot be fully
successful in transitional and developing countries without a answer to the question:
does the rule of law matter for economic development or not? [53] Constitutional
economics is the study of the compatibility of economic and financial decisions within
existing constitutional law frameworks, and such a framework includes government
spending on the judiciary which in many transitional and developing countries is
completely controlled by the executive. It is useful to distinguish between the two
methods of corruption of the judiciary: corruption by the executive branch, in contrast to
corruption by private actors.

The standards of constitutional economics can be used during annual budget process,
and if that budget planning is transparent then the rule of law may benefit. The
availability of an effective court system, to be used by the civil society in situations of
unfair government spending and executive impoundment of previously authorized
appropriations, is a key element for the success of the rule-of-law endeavor. [54]

The Rule of Law is especially important as an influence on the economic development

in developing and transitional countries. To date, the term “rule of law” has been used
primarily in the English-speaking countries, and it is not yet fully clarified even with
regard to such well-established democracies as, for instance, Sweden, Denmark,
France, Germany, or Japan. A common language between lawyers of common law and
civil law countries as well as between legal communities of developed and developing
countries is critically important for research of links between the rule of law and real
economy.[55]

[edit] In schools

The rule of law is generally acknowledged to be a cornerstone of orderly, organized

society, including within schools. The Sudbury School is an example of a school where
laws are always promulgated in writing, and careful records are kept of the body of
precedents surrounding each rule. There is no opening, however small, for arbitrary or
capricious authority to step in.[56][57][58]

[edit] In conflict with natural law

Upholding the rule of law can sometimes require the punishment of those who commit
offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises
the example of a battered woman who rightly believes that there is a strong probability
that her husband will eventually attempt to kill her and her children unless she
preemptively kills him. If the law does not permit the acquittal of those who claim self-
defense in the absence of an imminent threat of harm, then the woman must be
punished, or "what will become of the rule of law? For law seemingly ceases to be law if
judges are entitled to rethink its wisdom in every case to which it applies and to
disregard it whenever it is inferior to the rule that they would fashion." [59]

EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF INDIA:

A Comparative Critique
K. Jayasudha Reddy and Joy V. Joseph(1)

Readers are reminded that this work is protected by copyright. While they
are free to use the ideas expressed in it, they may not copy, distribute
or publish the work or part of it, in any form, printed, electronic or
otherwise, except for reasonable quoting, clearly indicating the source.
Readers are permitted to make copies, electronically or printed, for
personal and classroom use.

Contents
1. Introduction
2. Federalism in India
3. The development of Article 356
3.1 The Government of India Act, 1935
3.2 Drafting Committee of the Constituent Assembly
3.3 An analogy between Article 356 and Sections 45 and 93 of the
Government of India Act, 1935
4. The Sarkaria Commission Report, 1987
4.1 Background
4.2 Rare use of Article 356
4.3 Avoiding disastrous consequences
4.4 The Governor's obligation to explore alternatives
4.5 The Proclamation of Emergency and the Governor's Report
5. S. R. Bommai v. Union of India
6. Judicial review
7. Comparative analysis
7.1 Emergency powers of the President of the United States of America
7.2 Executive discretion under the Malaysian Constitution
8. The current situation in India
9. Failure to invoke emergency provisions
10. Conclusion
Notes
Appendix I: Specific sections of Part XI of the Constitution of Malaysia
 Appendix II: Article 356

1. Introduction

Article 356 of the Indian Constitution has acquired quite some notoriety
due to its alleged misuse. The essence of the Article is that upon the
breach of a certain defined state of affairs, as ascertained and reported
by the Governor of the State concerned (or otherwise), the President
concludes that the 'constitutional machinery' in the State has failed.
Thereupon the President makes a 'Proclamation of Emergency,' dismissing
the State Legislature and Executive. During a state of emergency, the
President is vested with tremendous discretionary powers. Any legislation
or constitutional provision that abrogates any of the basic principles of
democratic freedom is anathema to most people and the more so to the
people of the largest democracy in the world. Having just gained
independence after a long and continuous struggle, the people of India
would naturally have the greatest interest in preserving all the freedoms
envisioned in a democratic society. If the members of the Drafting
Committee of the Constitution included a provision that permits a
Government to dismiss a duly elected representative body of the people and
suspend those freedoms in violation of even the crudest interpretation of
a 'separation of powers,' then common sense suggests that it is only to
deal with the direst of circumstances and nothing less. But it seems that
the remedial nature of the Article has been perverted to impose the
domination of the Central Government upon a State Government that does not
subscribe to its views. Central control over regional governments is
essential for the integrity of nations that have federal systems of
government, and Article 356 was designed to preserve this integrity, but
what remains to be seen is whether it is being used at the cost of
sacrificing the interests of democratic freedom.

2. Federalism in India

Federalism in India is at once similar and distinct from other federations

like that of America; distinct in that it is not a group of independent
States coming together to form a federation by conceding a portion of
their rights of government, but a distributed entity that derives its
power from a single source - the Union. Sovereignty and the powers of
governance are distributed and shared by several entities and organs
within the Indian constitutional system.(2) Dr. Babasaheb Ambedkar, who
chaired the Drafting Committee of the Constituent Assembly, stressed the
importance of describing India as a 'Union of States' rather than a
'Federation of States.' He said: '. . . what is important is that the use
of the word “Union” is deliberate . . . Though the country and the people
may be divided into different States for convenience of administration,
the country is one integral whole, its people a single people living under
a single imperium derived from a single source.'(3) The similarity between
the systems of government in the two countries, however, is remarkable.
Both governments exhibit a strong Union control, where the individual
States give up a significant portion of their autonomous rights to the
Central Government in return for security and pursuit of common interests;
in contrast, in a confederation the individual States retain most of their
sovereignty and are only loosely bound together. In the words of Alexander
Hamilton (the illustrious co-author of the Federalist Papers, along with
James Madison and John Jay), when describing the proposed Constitution of
the Federal Government of the United States of America,
The definition of a confederate republic seems simply to be an
'assemblage of societies,' or an association of two or more states into
one state. The extent, modifications, and objects of the federal
authority are mere matters of discretion. So long as the separate
organization of the members be not abolished; so long as it exists, by a
constitutional necessity, for local purposes; though it should be in
perfect subordination to the general authority of the union, it would
still be, in fact and in theory, an association of states, or a
confederacy. The proposed Constitution, so far from implying an
abolition of the State governments, makes them constituent parts of the
national sovereignty, by allowing them a direct representation in the
Senate, and leaves in their possession certain exclusive and very
important portions of sovereign power. This fully corresponds, in every
rational import of the terms, with the idea of a federal government.(4)
This is in essence how one would describe Center-State relations in India;
excepting provisions for certain emergency situations in the Constitution
of India, where the Union would exercise absolute control within the
State. James Madison dealt extensively with the issues related with the
relinquishing of sovereign powers by States to a Central (or 'federal')
authority in the Federalist Papers, specifically Federalist No. 45.(5) He
believes that, for the common good of all the members of a federal system,
it is necessary for the individual States to sacrifice some of their
powers to the Union.(6) He then goes on to examine in detail the danger
this would pose to the residual powers that remain with the States (this
issue comes very close to the heart of this paper).(7) He contends that a
study of similar systems in ancient times, like the Achaean League or the
Lycian Confederacy, would reveal that the danger of usurpation of
authority by the Federal power would be smaller than the danger of
degeneration of the federation into smaller factions that would not be
able to defend themselves against external aggression.(8) This is
precisely the rationale behind the distribution of power between the Union
and the States in India. In fact, specific powers are divided into three
lists - the Union List, the State List, and the Concurrent List (powers
shared by both the Union and the States). Therefore the system of
government in India can be considered to be 'quasi-federal' in nature, in
as much as it is both federal and unitary. It can be considered federal
because of the distribution of powers between the Center and States and it
may be considered unitary because of the retention of Union control over
certain State matters, and also because of the constitutional provisions
relating to emergencies when all powers of a State would revert to the
Center. India has a vast and diverse population, with a large number of
people living in abject poverty. Extraordinary situations are not novel to
the Indian political scene. Therefore extraordinary powers to deal with
these situations become necessary. The power contained in Article 356 is
both extraordinary and arbitrary, but it is an uncanny trait of
extraordinary power that it tends to corrupt the wielder. A close scrutiny
of the history of its application would reveal that Article 356 is no
exception. But before we turn to that, a systematic analysis of the
constitutional development of this controversial piece of legislation is
in order.

3. The development of Article 356

3.1 The Government of India Act, 1935

This Act first introduced the concept of 'Division of Powers' in British

India. It was an experiment where the British Government entrusted limited
powers to the Provinces. But since there was very little faith lost
between the British and the Indian people, the British took precautions to
keep a sufficient check on the powers given to the Provinces. These
precautions were manifested in the form of emergency powers under Sections
93 and 45 of this Act, where the Governor General and the Governor, under
extraordinary circumstances, exercised near absolute control over the
Provinces.(9)
3.2 Drafting Committee of the Constituent Assembly

On August 29, 1947, a Drafting Committee was set up by the Constituent

Assembly. Under the chairmanship of Dr. B.R. Ambedkar, it was to prepare a
draft Constitution for India. In the course of about two years, the
Assembly discussed 2,473 amendments out of a total of 7,635 amendments
tabled.(10)
When it was suggested in the Drafting Committee to confer similar powers
of emergency as had been held by the Governor-General under the Government
of India Act, 1935, upon the President, many members of that eminent
committee vociferously opposed that idea. Dr. Babasaheb Ambedkar then
pacified the members stating:
'In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte
yesterday that the proper thing we ought to expect is that such articles
will never be called into operation and that they would remain a dead
 letter. If at all they are brought into operation, I hope the President,
who is endowed with these powers, will take proper precautions before
actually suspending the administration of the provinces.'

He added: 'I hope the first thing he will do would be to issue a clear
warning to a province that has erred, that things were not happening in
the way in which they were intended to happen in the Constitution.'(11)
By virtue of this earnest advice given by the prime architect of the
Indian Constitution, we can safely conclude that this is the very last
resort to be used only in the rarest of rare events. A good Constitution
must provide for all conceivable exigencies. Therefore this Article is
like a safety valve to counter disruption of political machinery in a
State.
Article 355 states: 'It shall be the duty of the Union to protect every
State against external aggression and internal disturbance and to ensure
that the government of every State is carried on in accordance with the
provisions of this Constitution.'(12) The word 'otherwise' in Article
356(1) was not included in the original draft; it was later introduced
through an amendment, despite protests from members of the original
Drafting Committee, stating that it was an open invitation to abuse the
Article. Dr. Ambedkar justified its introduction saying that Article 277A
(now Article 355, cited above) imposed a duty upon the Center to ensure
that the States are governed in accordance with constitutional provisions
and that hence it would not be proper for the President to base his
decision solely on the report of the Governor of the State.(13)
3.3 An analogy between Article 356 and Sections 45 and 93 of the
Government of India Act, 1935

There are certain differences in the provision relating to the failure of

the constitutional machinery under the present Constitution and the powers
dealt with in Sections 45 and 93 of the Government of India Act, 1935.(14)
Firstly, the 1935 Act empowered the Governor-General to deal with a
failure of the constitutional machinery at the Center (Section 45). It
also empowered the Governor-General to deal with a similar situation in a
Province (Section 93).(15) The present Constitution, however, does not
intend to suspend the Constitution of a State, but empowers the President
to take steps in this regard, though he shall have to act on the report of
the Governor or Ruler of the State. Secondly, under Section 93 of the 1935
Act, the executive and legislative powers of a State could be assumed by
the Governor, acting at his discretion.(16) The present Constitution has
separated the two powers: the President, assuming executive powers, and
the Union Parliament, assuming legislative powers.

4. The Sarkaria Commission Report, 1987

4.1 Background
In spite of the precautions laid down in Article 356, the Article was
invoked on several occasions by the Center due to ambiguities in its
wording. It was only in 1987 when the Sarkaria Commission submitted its
report that part of the obscurity surrounding Article 356 was cleared. The
Commission, headed by Justice R.S. Sarkaria, was appointed in 1983 and
spent four years researching reforms to improve Center-State relations.
4.2 Rare use of Article 356

The Sarkaria Commission recommended extremely rare use of Article 356. The
Commission observed that, although the passage, '. . . the government of
the State cannot be carried on in accordance with the provisions of this
Constitution . . .' is vague, each and every breach and infraction of
constitutional provisions, irrespective of their significance, extent, and
effect, cannot be treated as constituting a failure of the constitutional
machinery. According to the Commission, Article 356 provides remedies for
a situation in which there has been an actual breakdown of the
constitutional machinery in a State. Any abuse or misuse of this drastic
power would damage the democratic fabric of the Constitution. The report
discourages a literal construction of Article 356(1).(17)
The Commission, after reviewing suggestions placed before it by several
parties, individuals and organizations, decided that Article 356 should be
used sparingly, as a last measure, when all available alternatives had
failed to prevent or rectify a breakdown of constitutional machinery in a
State. Before taking recourse to the provisions of Article 356, all
attempts should be made to resolve the crisis at State level.(18)
4.3 Avoiding disastrous consequences

According to the Commission's report, these alternatives may be dispensed

with only in cases of extreme emergency, where failure on the part of the
Union to take immediate action under Article 356 would lead to disastrous
consequences. The report further recommended that a warning be issued to
the errant State, in specific terms that it is not carrying on the
government of the State in accordance with the Constitution. Before taking
action under Article 356, any explanation received from the State should
be taken into account. However, this may not be possible in a situation in
which not taking immediate action would lead to disastrous
consequences.(19)
4.4 The Governor's obligation to explore alternatives

In a situation of political breakdown, the Governor should explore all

possibilities of having a Government enjoying majority support in the
Assembly. If it is not possible for such a Government to be installed and
if fresh elections can be held without delay, the report recommends that
the Governor request the outgoing Ministry to continue as a caretaker
government, provided the Ministry was defeated solely on a major policy
issue, unconnected with any allegations of maladministration or corruption
and agrees to continue.(20) The Governor should then dissolve the
Legislative Assembly, leaving the resolution of the constitutional crisis
to the electorate.(21) During the interim period, the caretaker government
should merely carry on the day-to-day government and should desist from
taking any major policy decision.(22)
Every Proclamation of Emergency is to be laid before each House of
Parliament at the earliest, in any case before the expiry of the two-month
period stated in Article 356(3).(23)
The State Legislative Assembly should not be dissolved either by the
Governor or the President before a Proclamation issued under Article
356(1) has been laid before Parliament and the latter has had an
opportunity to consider it. The Commission's report recommends amending
Article 356 suitably to ensure this.(24) The report also recommends using
safeguards that would enable the Parliament to review continuance in force
of a Proclamation.(25)
4.5 The Proclamation of Emergency and the Governor's Report

The report recommends appropriately amending Article 356 to include in a

Proclamation material facts and grounds on which Article 356(1) is
invoked. This, it is observed in the report, would make the remedy of
judicial review on the grounds of mala fides more meaningful and the check
of Parliament over the exercise of this power by the Union Executive more
effective.(26) The Governor's Report, which moves the President to action
under Article 356, should be a 'speaking document, containing a precise
and clear statement of all material facts and grounds on the basis of
which the President may satisfy himself as to the existence or otherwise
of the situation contemplated in Article 356.' The Commission's report
also recommends giving wide publicity in all media to the Governor's
Report.(27)
It will be seen from this peremptory examination of the important passages
of the Sarkaria Commission Report that its recommendations are extensive
and define the applicability and justification of Article 356 in full. The
views of Sri P.V. Rajamannar, former Chief Justice of the Madras (Chennai)
High Court, who headed the Inquiry Commission by the State of Tamil Nadu
to report on Center-State relations, concur broadly with the views of the
Sarkaria Commission. But it is unfortunate that the principles and
recommendations given by them are disregarded in the present day and that
actions have been taken that are prima facie against the letter and spirit
of the Constitution of India.

5. S. R. Bommai v. Union of India

S. R. Bommai v. Union of India was a landmark in the history of the Indian

Constitution. It was in this case that the Supreme Court boldly marked out
the paradigm and limitations within which Article 356 was to function. In
the words of Soli Sorabjee, eminent jurist and former Solicitor-General of
India, 'After the Supreme Court's judgment in the S. R. Bommai case, it is
well settled that Article 356 is an extreme power and is to be used as a
last resort in cases where it is manifest that there is an impasse and the
constitutional machinery in a State has collapsed.'(28)
The views expressed by the various judges of the Supreme Court in this
case concur mostly with the recommendations of the Sarkaria Commission and
hence need not be set out in extenso. However, the summary of the
conclusions of the illustrious judges deciding the case, given in
paragraph 434 of the lengthy judgment deserves mention:
(1) Article 356 of the Constitution confers a power upon the President
to be exercised only where he is satisfied that a situation has arisen
where the Government of a State cannot be carried on in accordance with
the provisions of the Constitution. Under our Constitution, the power is
really that of the Union Council of Ministers with the Prime Minister at
its head. The satisfaction contemplated by the article is subjective in
nature.

(2) The power conferred by Article 356 upon the President is a

conditioned power. It is not an absolute power. The existence of
material - which may comprise of or include the report(s) of the
Governor - is a pre-condition. The satisfaction must be formed on
relevant material. The recommendations of the Sarkaria Commission with
respect to the exercise of power under Article 356 do merit serious
consideration at the hands of all concerned.

(3) Though the power of dissolving of the Legislative Assembly can be

said to be implicit in clause (1) of Article 356, it must be held,
having regard to the overall constitutional scheme that the President
shall exercise it only after the Proclamation is approved by both Houses
of Parliament under clause (3) and not before. Until such approval, the
President can only suspend the Legislative Assembly by suspending the
provisions of Constitution relating to the Legislative Assembly under
sub-clause (c) of clause (1). The dissolution of Legislative Assembly is
not a matter of course. It should be resorted to only where it is found
necessary for achieving the purposes of the Proclamation.

(4) The Proclamation under clause (1) can be issued only where the
situation contemplated by the clause arises. In such a situation, the
Government has to go. There is no room for holding that the President
can take over some of the functions and powers of the State Government
while keeping the State Government in office. There cannot be two
Governments in one sphere.

(5) (a) Clause (3) of Article 356 is conceived as a check on the power
of the President and also as a safeguard against abuse. In case both
Houses of Parliament disapprove or do not approve the Proclamation, the
Proclamation lapses at the end of the two-month period. In such a case,
Government which was dismissed revives. The Legislative Assembly, which
may have been kept in suspended animation gets reactivated. Since the
Proclamation lapses -- and is not retrospectively invalidated - the acts
done, orders made and laws passed during the period of two months do not
become illegal or void. They are, however, subject to review, repeal or
modification by the Government/Legislative Assembly or other competent
authority.

(b) However, if the Proclamation is approved by both the Houses within

two months, the Government (which was dismissed) does not revive on the
expiry of period of the proclamation or on its revocation. Similarly, if
the Legislative Assembly has been dissolved after the approval under
clause (3), the Legislative Assembly does not revive on the expiry of
the period of Proclamation or on its revocation.

(6) Article 74(2) merely bars an enquiry into the question whether any,
and if so, what advice was tendered by the Ministers to the President.
It does not bar the Court from calling upon the Union Council of
Ministers (Union of India) to disclose to the Court the material upon
which the President had formed the requisite satisfaction. The material
on the basis of which advice was tendered does not become part of the
advice. Even if the material is looked into by or shown to the
President, it does not partake the character of advice. Article 74(2)
and Section 123 of the Evidence Act cover different fields. It may
happen that while defending the Proclamation, the Minister or the
official concerned may claim the privilege under Section 123. If and
when such privilege is claimed, it will be decided on its own merits in
accordance with the provisions of Section123.

(7) The Proclamation under Article 356(1) is not immune from judicial
review. The Supreme Court or the High Court can strike down the
Proclamation if it is found to be mala fide or based on wholly
irrelevant or extraneous grounds. The deletion of clause (5) [which was
introduced by the 38th (Amendment) Act] by the 44th (Amendment) Act,
removes the cloud on the reviewability of the action. When called upon,
the Union of India has to produce the material on the basis of which
action was taken. It cannot refuse to do so, if it seeks to defend the
action. The court will not go into the correctness of the material or
its adequacy. Its enquiry is limited to see whether the material was
relevant to the action. Even if part of the material is irrelevant, the
court cannot interfere so long as there is some material which is
relevant to the action taken.
 (8) If the Court strikes down the proclamation, it has the power to
restore the dismissed Government to office and revive and reactivate the
Legislative Assembly wherever it may have been dissolved or kept under
suspension. In such a case, the Court has the power to declare that acts
done, orders passed and laws made during the period the Proclamation was
in force shall remain unaffected and be treated as valid. Such
declaration, however, shall not preclude the Government/Legislative
Assembly or other competent authority to review, repeal or modify such
acts, orders and laws.(29)

Thus it can be seen from the conclusions of this Bench of the Supreme
Court that the President's power under Article 356 is not absolute or
arbitrary. The President cannot impose Central rule on a State at his
whim, without reasonable cause.

6. Judicial review

The susceptibility of a Proclamation under Article 356 to judicial review

is beyond dispute, because the power under Article 356(1) is a conditional
power. In the exercise of the power of judicial review, the court is
entitled to examine whether the condition has been satisfied or not. So
the controversy actually revolves around the scope and reach of judicial
review. From the decisions in the case of State of Rajasthan v. Union of
India and the Bommai case, it is clear that there cannot be a uniform rule
applicable to all cases.(30) It is bound to vary depending upon the
subject matter, nature of the right, and other factors. However, where it
is possible the existence of satisfaction can always be challenged on the
ground that it is 'mala fides or based on wholly extraneous and irrelevant
grounds.'(31) The relevance of judicial review in matters involving
Article 356 is also emphasized in the Supreme Court judgment in re State
of Madhya Pradesh v. Bharat Singh, where the Supreme Court held that it
was not precluded from striking down a law passed prior to a Proclamation
of Emergency, as ultra vires to the Constitution, just because the
Proclamation was in force at that time.(32)
Judicial review of the Proclamation under Article 356(1) was first tested
in State of Rajasthan v. Union of India.(33) The Supreme Court, being the
ultimate interpreter of the Constitution, has the power of judicial review
on all actions emanating from or empowered by any constitutional
provision. Though the power of the President under Article 356 concerns
his political judgment and the courts usually avoid entering the political
thicket, this power does not enjoy blanket immunity from judicial review.
It has to be determined in the individual cases on the basis of
justifiability, which is distinct from judicial review. But unless the
mala fides of the Presidential Proclamation is shown, the Courts have been
exhorted by the Supreme Court to avoid delving into the President's
satisfaction for want of judicially manageable standards. This point is
amply evident in the case of Minerva Mills and Others v. Union of India
and Others, where the Supreme Court dwelt extensively on its power to
examine the validity of a Proclamation of Emergency issued by the
President. The Supreme Court in this matter observed, inter alia, that it
should not hesitate to perform its constitutional duty merely because it
involves considering political issues. At the same time, it should
restrict itself to examining whether the constitutional requirements of
Article 352 have been observed in the declaration of the Proclamation and
it should not go into the sufficiency of the facts and circumstances of
the presidential satisfaction in the existence of a situation of
emergency.(34)
Thus we can safely conclude that, though limited, the Presidential
Proclamation under Article 356 is subject to judicial review.

7. Comparative analysis

7.1 Emergency powers of the President of the United States of America

The Constitution in a democracy can be considered a written manifestation

of the will of the general public; and hence the Constitution should be
considered superior to any of the three organs of Government. Therefore,
it cannot be assumed that any power that has not been expressly granted by
the Constitution is implied. Article 1 § 8 of the US Constitution gives
Congress the power to make rules and regulations to deal with and provide
for emergencies. Harold C. Relyea, has pointed out:
It may be argued, however, that the granting of emergency powers by
Congress is implicit in its Article I, section 8 authority to 'provide
for the common Defense and general Welfare,' the commerce clause, its
war, armed forces, and militia powers, and the 'necessary and proper'
clause empowering it to make such laws as are required to fulfill the
executions of 'the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof.'(35)

These powers, it would seem, are for Congress to grant, and are not vested
directly in the President. So we can say that only Congress has such
powers, which have been assigned to it by the Constitution.(36) But
instead Presidents (Chief Executives) have assumed that these emergency
powers are an executive privilege. For example, during the Civil War,
President Lincoln suspended habeas corpus and curtailed other individual
freedoms such as free speech and private property. When Congress
intervened and his actions were questioned, he responded: 'It is believed
that nothing has been done beyond the constitutional competency of
Congress.'(37) It was Chief Justice Taney who pointed out that '[the]
president is commander in chief, but the two-year limit on military
appropriations ensures that the House can disband the army if, in their
judgment, the president used, or designed to use it for improper
purposes.'(38) He further stated that, while curtailing liberties of
individuals, the only power the President had was to 'take care that the
laws shall be faithfully executed.'(39) According to Chief Justice Taney,
the President's authority was to 'aid judicial authority,' not executing
them himself or through officers appointed by him.(40)
According to the Constitution, during national emergencies only the
'habeas corpus clause' can be suspended by Congress and the President.(41)
Justice Jackson, concurring in the judgment in the 1952 Steel Seizure
case, outlined a practical test for the constitutionality of executive
action:
1. When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress
can delegate. In these circumstances, and in these only, may he be said
(for what it may be worth) to personify the federal sovereignty. If his
act is held unconstitutional under these circumstances, it usually means
that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be
supported by the strongest of presumptions and the widest latitude of
judicial interpretation, and the burden of persuasion would rest heavily
upon any who might attack it.

2. When the President acts in absence of either a congressional grant or

denial of authority, he can only rely upon his own independent powers,
but there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence may
sometimes, at least, as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any
actual test of power is likely to depend on the imperatives of events
and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or

implied will of Congress, his power is at its lowest ebb, for then he
can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter. Courts can sustain
exclusive presidential control in such a case only by disabling the
Congress from acting upon the subject. Presidential claim to a power at
once so conclusive and preclusive must be scrutinized with caution, for
what is at stake is the equilibrium established by our constitutional
system.(42)

This gives rise to the aspect of questionability of executive exercise of

powers. The power of judicial review was established by the Supreme Court
as early as 1803 in the matter of Marbury v. Madison.(43) In this case, a
suit was brought against the then Secretary of State, James Madison, in
the form of a petition for a writ of mandamus. This judicial remedy in the
original jurisdiction was available to the Supreme Court under the
Judiciary Act of 1789. In denying the writ, Chief Justice Marshall ruled
that the original jurisdiction of the Supreme Court was established by the
Constitution and could not be enlarged or reduced by any means other than
constitutional amendment, and therefore he held that the Judiciary Act of
1789 was unconstitutional.
Thus it can be seen that the judiciary does have the right to question
executive authority with respect to national emergencies and, furthermore,
that any dispute arising thereof is considered to be 'judicially
reviewable.'
Though the situations of emergency envisaged in the American context
differ from those in the Indian context, there is definitely a commonality
as to the magnitude of events qualifying as an emergency. In 1934, a
Supreme Court ruling defined an emergency as 'urgency and relative
infrequency of occurrence as well as equivalence to a public calamity
resulting from fire, flood, or like disaster not reasonably subject to
anticipation.'(44) This ruling concurs with the rare invocation of
emergency rule in India according to the Indian Constitution.
It was the National Emergencies Act (50 U.S.C. 1601-1651) by which the
President was asked to 'declare formally the existence of a national
emergency and to specify what statutory authority, activated by the
declaration, would be used, and provided Congress a means to countermand
the President's declaration and the activated authority being sought.'(45)
And it was President Theodore Roosevelt who 'declined to adopt the view
that what was imperatively necessary for the Nation could not be done by
the President unless he could find some specific authorization to do
it.'(46) He also believed that 'it was not only his right but duty to do
anything that the needs of the Nation demanded unless such action was
forbidden by the Constitution or by the laws.'(47) This is exactly the
opposite to the Indian context, where executive powers must have express
authority from a specific constitutional provision. The next President of
the United States, President William Howard Taft, was of the opinion 'that
the President can exercise no power which cannot be fairly and reasonably
traced to some specific grant of power or justly implied and included
within such express grant as proper and necessary to its exercise.'(48)
Taft concluded: 'There is no undefined residuum of power which he can
exercise because it seems to him to be in the public interest . . .'(49)
This view is more in accordance with the situation in India. The
underlying principle is that all three organs of government in a democracy
derive their authority to act for the common people from the Constitution
and, hence, every power exercised is by specific delegation and should not
be assumed to be implied unless explicitly denied. Apart from the above
two views on presidential emergency powers, there is one authority who is
of the opinion that 'emergency powers are not solely derived from legal
sources. The extent of their invocation and use is also contingent upon
the personal conception which the incumbent of the Presidential office has
of the Presidency and the premises upon which he interprets his legal
powers. In the last analysis, the authority of a President is largely
determined by the President himself.'(50) In the Indian context, the only
interpreter of the Constitution is the Supreme Court and no other person
or body has a right to interpret it.
The President of the United States has some powers that are permanently
available to him for dealing with emergencies. A good example of this is
the Defense Production Act, originally adopted in 1950 to prioritize and
regulate the manufacture of military materials. This is similar to powers
available to the President of India as the Supreme Commander of the Armed
Forces.
Apart from these permanent powers, there is a variety of standby laws -
which are statutory provisions that have been delegated by Congress to the
Executive - that convey special emergency powers once the President of the
United States of America has formally declared a national emergency. The
National Emergencies Act of 1976 prescribes formal procedures for invoking
these authorities, accounting for their use and regulating their
activation and application. These can be equated to the clauses of Article
356 (of the Indian Constitution), which regulates its invocation and
use.(51)
The aspects of an emergency condition as put forward by Edward Corwin
reflect characteristics strikingly similar to Article 356 of the Indian
Constitution.(52) The first is the temporal character of national
emergency - sudden, unforeseen, and of unknown duration. This can be
compared to the Drafting Committee and Sarkaria Commission's envisaged
'rarest of rare circumstances' application of Article 356 in India. The
extension of Article 356 in gradual time intervals concurs with the
'unknown duration' aspect of a national emergency in the United States.
The second aspect according to Corwin is potential gravity - a dangerous
and life-threatening situation. This is in concurrence with the Sarkaria
Commission Report's recommendations to resort to Article 356 only if not
doing so would lead to 'disastrous consequences.'
The third aspect is perception - who discerns a phenomenon of emergency?
Corwin's conclusion is that the American Constitution is guiding but not
conclusive; this is analogous to our finding that the Indian Constitution,
though it prescribes symptoms and criteria for qualifying an emergency,
leaves it primarily to the judgment of the Governor of the State, in the
form of the 'Governor's Report,' and to presidential discretion, in the
form of the well-known 'otherwise' term in Article 356, to decide that a
situation of emergency has arisen.
The fourth aspect of a national emergency according to Corwin is the
element of response to a sudden situation that cannot always be dealt with
according to rule and that requires immediate action. This aspect is a
combination of other aspects and adds a qualifier, viz. that there is no
existing active rule that can counter the situation. This aspect is
personified in the very first clause of Article 356: 'a situation has
arisen in which the government of the State cannot be carried on in
accordance with the provisions of this Constitution.'
The striking difference between emergencies as envisaged in the American
Constitution is that they pertain solely to national emergencies. Hence,
even if the situation affects a part of the country or a particular State,
the scope of the stand-by powers of emergency of the President of the
United States is national in character, whereas the scope of the powers
under Article 356 of the Indian Constitution is restricted to particular
States. This has its advantages and disadvantages. The advantage in the
American instance is obvious; it gives the President wider latitude in
mobilizing the whole country to deal with an emergency situation in one
part. The disadvantage is that national emergency powers curtail
individual rights at a national level, even if the emergency is regional
in character.(53) Out of concerns arising from the continued use of
emergency powers by the Chief Executives long after the situation of
emergency has passed (specifically the continued existence of President
Truman's 1950 national emergency proclamation long after the conditions
prompting its issuance had disappeared), the 'Special Committee on the
Termination of the National Emergency' was chartered in June of 1972. At
that time, the Committee established that four proclamations (those of
1933, 1950, 1970, and 1971) were in effect. The Special Committee - later
reconstituted as the 'Special Committee on National Emergencies and
Delegated Emergency Powers' - ascertained that no process existed for
automatically terminating the four outstanding national emergency
proclamations. This situation was in contrast to the provisions of Article
356(3) and (4) of the Indian Constitution, which stipulates checks and
balances against the potential of prolonged impositions of arbitrary
powers of discretion of the Executive.(54)
The recommendations of the Special Committee and a series of congressional
debates culminated in the 1976 enactment of the National Emergencies Act,
which rendered ineffective the four existing proclamations of emergency,
requiring a new proclamation to activate standby extraordinary powers of
the President.
The Act in essence returned all standby emergency powers to dormancy two
years after the Statute's approval. It further provided a procedure for
future declarations and their congressional regulation. The checks and
balances prescribed under the National Emergencies Act, are similar to the
controlled method of escalation provided by the extensions of
proclamations in graded time intervals, required under Article 356 of the
Indian Constitution.
In a legislative sense, the regulation of emergency powers of the
Executive in the United States of America and in India are pretty similar,
theoretically. Practically, it is a totally different story altogether.
Public opinion in the United States of America is active enough to act as
a restraint against executive excesses, whereas public opinion in India is
yet to become such a substantive force. This is partially compensated by
the vigilance of judicial activism.
7.2 Executive discretion under the Malaysian Constitution

The Malaysian Constitution could be considered the other end of the

spectrum of executive discretionary powers. In Malaysia, these powers are
largely concentrated in the area dealing with emergency provisions.
Malaysia, being a former British colony, has a constitutional structure
very similar to that of India: a bicameral division of Parliament and a
Westminster model of the separation of powers, with an overlap between the
Executive and the Legislature, and an independent judiciary. The only
difference is the equivalent of the President - a monarch, known as the
Yang di Pertuan Agong, and, whereas the Indian Constitution is secular,
the Malaysian Constitution recognizes Islam as the country's official
religion. The Yang di Pertuan Agong can absolutely suspend fundamental
rights like the liberty of person, life, the freedoms of speech,
expression, and movement in a State (or the country), as was pointed out
by Poh-Ling Tan, Lecturer at the Faculty of Law at Queensland University
of Technology, Australia, in her paper entitled 'Human Rights and the
Malaysian Constitution Examined through the Lens of the Internal Security
Act 1960.'(55) In this paper, Poh-Ling Tan also underlines the severe
restrictions on the powers of judicial review of executive discretionary
powers by the Apex Court and the rank disregard for all theories on the
separation of powers shown by the Executive in the dismissal of the Lord
President of the Supreme Court, in 1988, followed by the dismissal of two
Supreme Court judges.(56) This is in stark contrast to the absolute level
of the independence of the judiciary in India and the unquestioned
authority of the Supreme Court of India as the supreme interpreter and
guardian of the Constitution.
The history of constitutional emergency in Malaysia started in 1948,
before the country's independence, when the British Government declared a
state of emergency, preceding a 12-year communist insurgency, when 11,000
people were reportedly killed and the British High Commissioner
assassinated.(57) Since independence in 1957, the new government has made
its first Proclamation of Emergency in 1964 due to a conflict with
Indonesia.(58) Despite the cessation of the Indonesian threat, the
Proclamation was never revoked.(59) The second Proclamation of Emergency
by the Government of independent Malaysia, issued in 1966, was restricted
to the State of Sarawak, to deal with the constitutional impasse caused by
the dismissal of the Chief Minister of Sarawak.(60) This Proclamation
again was never formally revoked. The third Proclamation, which was
nationwide, was issued in 1969 to deal with election-related rioting and
racial violence. Several sections of the Constitution were suspended,
restricting individual liberty. In spite of the restoration of normalcy
and the Legislature, this Proclamation, like its predecessors, was never
revoked.(61)
Another political standoff in the State of Kelantan, due to nonalignment
of interests between the Central and State leaderships, resulted in the
fourth Proclamation of Emergency in 1977.(62) The circumstances preceding
this Proclamation - the Union or Central leadership suspending a State
Government where it is not able to impose leadership aligned to it - is
reminiscent of the Proclamation of Emergency in the State of Uttar
Pradesh, in India, which will be discussed in more detail in the next
section.
This situation of overlapping Proclamations of Emergency in Malaysia is
constitutionally possible, as was pointed out by Ramdas Tikamdas in a
paper presented at the 2002 Workshop of the Research School of Pacific and
Asian Studies, at the Australian National University, on 'National
Security and Constitutional Rights in the Asia Pacific Region: The
Malaysian Experience.'(63) Article 150(2A) of the Malaysian Constitution
clearly states that the Yang di Pertuan Agong may issue a Proclamation
even when a previous Proclamation is in operation.(64) This is similar to
the overlapping Proclamations before the passing of the National
Emergencies Act in 1976 in the United States of America and, again, in
sharp contrast to the provisions in the Indian Constitution. Another major
difference is that presidential satisfaction as to the existence of a
situation of emergency is not entirely exempt from judicial review under
the Indian Constitution, as was pointed out above, whereas satisfaction of
the Yang di Pertuan Agong enjoys a high degree of immunity from judicial
review under Article 150(8)(a) of the Malaysian Constitution.(65)
It is difficult to analyze the total impact of executive discretionary
powers under the Malaysian Constitution and of laws passed under the
protection of Proclamations of Emergency without leaving the domain of
Constitutional Law and transcending into the domain of Human Rights Law.
Although both are interwoven and, to a certain degree, interdependent, it
would be extraneous to the purposes of this discussion. It would suffice
to say that this might be a good example to prove why it is dangerous to
take an ad hoc approach to constitutional development and legislation,
i.e. without analyzing the full spectrum of its ramifications.

8. The current situation in India

The present situation in India shows that the 'dead-letter' provision - as

Dr. Ambedkar hoped it would be - has become a frequently invoked,
not-so-dead Article; it has been activated more than a hundred times till
today.(66) The National Commission to Review the Working of the
Constitution (NCRWC), which was established on February 22, 2000, on the
basis of a joint resolution of the Government of India, Ministry of Law,
Justice and Company Affairs (Department of Legal Affairs), submitted its
extensive report in March 2002.(67) In its analysis, the NCRWC stated that
in at least twenty out of the more than one hundred instances, the
invocation of Article 356 might be termed as a misuse.(68) It is difficult
to believe that, during his tenure as the Governor of the State of Uttar
Pradesh, Romesh Bhandari made any real effort to install a popularly
elected government or to conduct a constitutionally mandated floor-test to
test the strength of the Legislative Assembly in the State for identifying
a majority party before prompting the application of the Article by the
President.(69) After the fall of the Mayawati Government in the State of
Uttar Pradesh, it might have been justifiable to impose President's Rule.
But it was also necessary to hold fresh elections as soon as possible. The
mala fides of the Union Executive in preventing the assumption of office
by an unfavorable political entity became clearly manifest in Governor
Bhandari's actions and the decision of the United Front Government at the
Center, to re-impose President's Rule in Uttar Pradesh. The worst damage
may possibly have been done through the office of the Governor, because
the Governor cannot be held responsible for his or her actions. H. M.
Seervai pointed out that the Governor can be removed only by the President
and that the President acts on the advice of the Council of Ministers;
hence the Governor is in office pretty much at the pleasure of the Union
Executive.(70) This may act as a bias whenever the Governor's duty
requires him to go against the desires of the Union Executive. In its
report, the NCRWC recommended that the President should appoint or remove
the Governor in consultation with the Chief Minister of the State. This
may act as a restraint on the misuse of power by the Office of the
Governor.(71)
Another example of misuse of Article 356 was the imposition of President's
Rule in the State of Gujarat from September1996 to October 1996, following
the incidents of violence indulged in by members of the Gujarat
Legislative Assembly. Soli Sorabjee pointed out that violence within the
Assembly cannot be treated as an instance of failure of the constitutional
machinery; it would otherwise become very easy for malicious legislators
to dissolve a duly elected legislative body by creating pandemonium in the
Assembly and thereby prompting improper invocation of Article 356.(72) The
correct procedure to be followed in such a situation is to pass suitable
legislation for disqualifying the guilty legislators.

9. Failure to invoke emergency provisions

On the other extreme of misuse of Article 356 was the failure of the Union
Executive - which was of the same political belief as the Government of
Narendra Modi in Gujarat - to invoke Article 356 during the carnage
following the Godhra train incident on February 27, 2002, in the State of
Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated
member of the Upper House (Rajya Sabha) of the Indian Parliament during a
parliamentary debate: 'Vital statistics tells us that there are more than
100000 persons in refugee camps and more than 30,000 people have been
chargesheeted. Are these figures not enough to compel the Government to
take action under articles 355 and 356?'(73) Fali Nariman also rightly
pointed out in an interview with a newspaper correspondent that the
Constitution may not have envisaged a situation where an emergency has
arisen in a State where the ruling party is of the same political
persuasion as the one at the Center and, hence, the Center might be biased
against dissolving that government by invoking Article 356. He also
pointed out that the word 'otherwise' in the text of Article 356 becomes
instrumental in such a situation to allow the President to act without
waiting for the 'Governor's Report.'(74)

10. Conclusion

It is evident that there is a lack of effective safeguards against the

abuse of Article 356 of the Indian Constitution. The safeguard of
'parliamentary approval' - outlined in Article 356(3) - of a Proclamation
under Article 356(1) could be biased because the Party that is in power at
the Center generally dominates Parliament by a majority vote. Furthermore,
even a vote in Parliament declaring a particular imposition (or failure to
impose) of President's Rule to be wrongful cannot undo the damage already
done.
However, the repeal of Article 356 is not advisable because the Indian
polity is rife with crises and there has to be some contingency against a
constitutional deadlock in a State. The NCRWC also advised against the
repeal of Article 356, stating that this would create an imbalance in
Union-State relations in upholding constitutional governance throughout
India and that in many more instances than not the use of Article 356 was
inevitable.(75) Another option is to introduce further checks on the
exercise of power under Article 356, by amendment. Even this is not
advisable because it defeats the very purpose of the Article of dealing
expeditiously with emergencies of constitutional failure in a State.
Therefore, the most practical course left open may be to let history take
its course. Eventually, the public opinion in India, we fervently hope,
will awaken to the fact that Article 356 may veritably have become a noose
that is slowly tightening around the neck of democracy in India,
suffocating the right of the people under the Constitution. In the
meantime, to nurture budding public opinion we do have a resource not to
be underestimated, which is the power of judicial review of the Supreme
Court, which has on more than one occasion shown that it is a power to be
reckoned with.
So we will have to suffice for now with occasional outcries against the
Union Executive unsheathing or failing to unsheathe, at its sweet pleasure
that double-edged sword called Article 356.
Notes
1. K. Jayasudha Reddy completed her first degree in Law from Indian Law
Society's Law College, University of Pune, India, and completed her Master
of Laws in U.S. Legal Studies at the University of Connecticut School of
Law, USA. Jayasudha was a scholar at the Hague Academy of International
Law in the Netherlands, in 2001, and has been working in the area of
Immigration and Asylum Law in Connecticut, USA. Joy V. Joseph completed
his first degree in Law from Indian Law Society's Law College, University
of Pune, India, and was admitted to the Bar Council of Maharashtra and
Goa, in India, in 1999. While at the University of Pune, Joy researched
Constitutional Emergencies. He completed his Master's degree in Business
Administration at the University of Connecticut School of Business, USA.
Presently, he works on the development of econometric forecasting models
at Marketing Management Analytics in Wilton, CT.
The authors express their gratitude to Dr. Robert Birmingham, Professor of
Law at the University of Connecticut, for his advice and for reviewing
sections of this paper relating to the American Constitution and to Mr.
Prathish Prabhakaran, Attorney-at-Law, Consulta Juris, Mumbai, India, and
Gayatri Jachak and Eram Khan, University of Pune, India, for their help in
researching material relating to Indian Constitutional Law cited in this
paper.
The views expressed in this paper are the personal views of the authors,
unless where expressly mentioned otherwise. Any questions and concerns
about this paper can be addressed to the authors at:
jjoseph@business.uconn.edu and jayasr@hotmail.com.
2. National Commission to Review the Working of the Constitution, A
Consultation Paper on Article 356 of the Constitution, II, ¶ 2.1 (2002),
at http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm (last visited Feb.
22, 2004).
3. National Commission to Review the Working of the Constitution, Report,
I, ¶ 8.1.2 (2002), at http://lawmin.nic.in/ncrwc/finalreport/volume1.htm
(last visited March 21, 2004).
4. Alexander Hamilton, The Union as a Safeguard Against Domestic Faction
and Insurrection, The Federalist No. 9, Independent Journal, Nov. 1787.
5. James Madison, The Alleged Danger from the Powers of the Union to the
State Governments Considered, Independent Journal, Jan. 1788 at
http://memory.loc.gov/const/fed/fed_45.html (last visited Feb. 22, 2004).
6. Id.
7. Id.
8. Id.
9. National Commission to Review the Working of the Constitution, supra
note 2, at ¶ 2.1.
10. First Day in the Constituent Assembly, at
http://parliamentofindia.nic.in/debates/facts.htm (last visited Feb. 22,
2004).
11. National Commission to Review the Working of the Constitution, supra
note 2, at ¶ 2.2.
12. India - Constitution, at
http://www.oefre.unibe.ch/law/icl/in00002_.html (last visited Feb. 22,
2004).
13. D.D. Basu, Commentary on the Constitution of India (5th edn. 1990). A
graphic record of this debate is also available at
http://www.tribuneindia.com/1998/98nov08/sunday/head.htm (last visited
Feb. 22, 2004).
14. National Commission to Review the Working of the Constitution, supra
note 2, at ¶ 2.2.
15. Id.
16. Id.
17. The Sarkaria Commission Report, ¶ 6.3.23 (1987).
18. Id. at ¶ 6.8.01.
19. Id. at ¶ 6.8.02.
20. Id. at ¶ 6.8.04.
21. Id. at ¶ 6.8.04.
22. Id. at ¶ 6.8.04.
23. Id. at ¶ 6.8.05.
24. Id. at ¶ 6.8.06.
25. Id. at ¶ 6.8.07.
26. Id. at ¶ 6.8.08.
27. Id. at ¶ 6.8.09 and ¶ 6.8.10.
28. Soli Sorabjee, Constitutional Morality Violated in Gujarat, Indian
Express, Pune, India, Sept. 21, 1996.
29. S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, ¶ 434.
30. State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361.
31. S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, ¶ 434.
32. State of Madhya Pradesh v. Bharat Singh, A.I.R. 1967 SC 1170; Centre
for International and Comparative Human Rights Law, States of Emergency
Database, Queen's University, Belfast at
http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.htm (last visited
Feb. 22, 2004).
33. State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361.
34. Minerva Mills and Others v. Union of India and Others, A.I.R. 1980 SC
1789; Centre for International and Comparative Human Rights Law, States of
Emergency Database, Queen's University, Belfast;
http://www.law.qub.ac.uk/humanrts/emergency/india/ind6.htm (last visited
Feb. 19, 2004).
35. Harold C. Relyea, National Emergency Powers, 2001 CRS Report for
Congress 2, http://www.usembassy.it/pdf/other/98-505.pdf (last visited
Feb. 20,2004).
36. Daniel Farber, Lincoln's Constitution 18 (2003).
37. Id. at 118.
38. Id. at 119.
39. Id.
40. Id.
41. Id. at 146.
42. Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), available at
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579
(last visited Feb. 19, 2004).
43. Robert W. Langran, Presidents versus the Court, at
http://www.supremecourthistory.org/myweb/77journal/langran77.htm (last
visited Feb. 20, 2004).
44. Harold C. Relyea, supra note 35, at 4.
45. Id. at 1.
46. Theodore Roosevelt quoted in id. at 2.
47. Theodore Roosevelt quoted in id. at 2.
48. William Howard Taft quoted in id. at 2.
49. William Howard Taft quoted in id. at 3
50. Albert Sturm quoted in id. at 3.
51. Id.
52. Id. at 4.
53. Id. at 8.
54. The duration ('continuance in force') of a Proclamation of Emergency
under Article 356(3) and (4) is two months unless approved by resolutions
of both Houses of Parliament, and would still cease to be in operation
after a period of six months from the date of the last resolution. This
could be further extended for another six months by resolutions of the
Houses of Parliament. See Appendix I.
55. Poh-Ling Tan, Human Rights and the Malaysian Constitution Examined
through the Lens of the Internal Security Act 1960 (2001), at
http://rspas.anu.edu.au/pah/human_rights/papers/2001/Tan.rtf, section
'Numerous regressive measures since 1957' (last visited March 21, 2004).
56. Id.; A detailed analysis of the constitutional structure of Malaysia
and the issues regarding the independence of the Malaysian judiciary can
be found in a report published by the International Commission of Jurists,
at http://www.icj.org/IMG/pdf/malaysia.pdf (last visited Feb. 22,2004).
57. Poh-Ling Tan, supra note 55.
58. Id. at Fn. 24.
59. Id.
60. Id. at Fn. 24.
61. Id. at Fn. 24.
62. Centre for International and Comparative Human Rights Law, States of
Emergency Database, Queen's University, Belfast, at
http://www.law.qub.ac.uk/humanrts/emergency/malaysia/mal9.htm (last
visited Feb. 22, 2004).
63. Ramdas Tikamdas, National Security and Constitutional Rights in the
Asia-Pacific Region: The Malaysian Experience, at
http://rspas.anu.edu.au/pah/human_rights/papers/2002/tikamdas.rtf, section
'Article 150 - Emergency (Overlapping Emergencies)' (last visited Feb. 22,
2004).
64. See full text cited in Appendix I.
65. Id.
66. Ahmadi J., S.R. Bommai v. Union of India, (1994) 3 SCC 1, 296-297, ¶
434.
67. National Commission to Review the Working of the Constitution, supra
note 3, at ¶ 1.1.1.
68. Id. at ¶ 8.16.
69. Press Trust of India, HC Order Speaks of Bhandari's Haste, Express
India, Feb. 26, 1998, at
http://www.expressindia.com/ie/daily/19980226/05750654.html (last visited
Feb. 22, 2004).
70. H.M. Seervai, Constitutional Law of India, vol. 3, 3103 ( 4th edn.
1996).
71. National Commission to Review the Working of the Constitution, supra
note 3, at ¶ 8.14.2.
72. Soli Sorabjee, supra note 28.
73. Rajya Sabha, Supplement to the Synopsis of Debates (May 2, 2002), at
http://rajyasabha.nic.in/rsdebate/synopsis/195/s02052002.htm (last visited
Feb. 22, 2004).
74. Manoj Mitta, If NHRC Indicts Modi, He Must Be Sacked, Indian Express,
March 31, 2002, at http://www.indianexpress.com/ie20020331/op1.html.
75. National Commission to Review the Working of the Constitution, supra
note 3, at ¶ 8.18.
76. Centre for International and Comparative Human Rights Law, States of
Emergency Database, Queen's University, Belfast, at
http://www.law.qub.ac.uk/humanrts/emergency/malaysia/mal4.htm (last
visited Feb. 22, 2004).
77. From the International Constitutional Law website, at
http://www.oefre.unibe.ch/law/icl/in00002_.html (last visited March 25,
2004).

Appendix I: Specific sections of Part XI of the Constitution of Malaysia

Special powers against subversion, organised violence, and acts and crimes
prejudicial to the public and emergency powers
149.
(1) If an Act of Parliament recites that action has been taken or
threatened by any substantial body of persons, whether inside or outside
the Federation -
(a) to cause, or to cause a substantial number of citizens to fear,
organised violence against persons or property; or
 (b) to excite disaffection against the Yang di-Pertuan Agong or any
Government in the Federation; or

(c) to promote feelings of ill-will and hostility between different

races or other classes or the population likely to cause violence; or

(d) to procure the alteration, otherwise than by lawful means, of

anything by law established; or

(e) which is prejudicial to the maintenance or the functioning of any

supply or service to the public or any class of the public in the
Federation or any part thereof; or

(f) which is prejudicial to public order in, or the security of, the
Federation or any part thereof, any provision of that law designed to
stop or prevent that action is valid notwithstanding that it is
inconsistent with any of the provisions of Articles 5, 9, 10 or 13, or
would apart from this Article be outside the legislative power of
Parliament; and

Article 79 shall not apply to a Bill for such an Act or any amendment
to such a Bill.
(2) A law containing such a recital as is mentioned in Clause (1) shall,
if not sooner repealed, cease to have effect if resolutions are passed
by both Houses of Parliament annulling such law, but without prejudice
to anything previously done by virtue thereof or to the power of
Parliament to make a new law under this Article.

150.
(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency
exists whereby the security, or the economic life, or public order in
the Federation or any part thereof is threatened, he may issue a
Proclamation of Emergency making therein a declaration to that effect.

(2) A Proclamation of Emergency under Clause (1) may be issued before

the actual occurrence of the event which threatens the security, or the
economic life, or public order in the Federation or any part thereof if
the Yang di-Pertuan Agong is satisfied that there is imminent danger of
the occurrence of such event.

(2A) The power conferred on the Yang di-Pertuan Agong by this Article
shall include the power to issue different Proclamations on different
grounds or in different circumstances, whether or not there is a
Proclamation or Proclamations already issued by the Yang di-Pertuan
Agong under Clause (1) and such Proclamation or Proclamations are in
operation.
 (2B) If at any time while a Proclamation of Emergency is in operation,
except when both Houses of Parliament are sitting concurrently, the
Yang di-Pertuan Agong is satisfied that certain circumstances exist
which render it necessary for him to take immediate action, he may
promulgate such ordinances as circumstances appear to him to require.

(2C) An ordinance promulgated under Clause (2B) shall have the same
force and effect as an Act of Parliament, and shall continue in full
force and effect as if it is an Act of Parliament until it is revoked
or annulled under Clause (3) or until it lapses under Clause (7); and
the power of the Yang di-Pertuan Agong to promulgate ordinances under
Clause (2B) may be exercised in relation to any matter with respect to
which Parliament has power to make laws, regardless of the legislative
or other procedures required to be followed, or the proportion of the
total votes required to be had, in either House of Parliament.
(3) A Proclamation of Emergency and any ordinance promulgated under
Clause (2B) shall be laid before both Houses of Parliament and, if not
sooner revoked, shall cease to have effect if resolutions are passed by
both Houses annulling such Proclamation or ordinance, but without
prejudice to anything previously done by virtue thereof or to the power
of the Yang di-Pertuan Agong to issue a new Proclamation under Clause
(1) or promulgate any ordinance under Clause (2B).

(4) While a Proclamation of Emergency is in force the executive

authority of the Federation shall, notwithstanding anything in this
Constitution, extend to any matter within the legislative authority of a
State and to the giving of directions to the Government of a State or to
any officer or authority thereof.

(5) Subject to Clause (6A), while a Proclamation of Emergency is in

force, Parliament may, notwithstanding anything in this Constitution
make laws with respect to any matter, if it appears to Parliament that
the law is required by reason of the emergency; and Article 79 shall not
apply to a Bill for such a law
or an amendment to such a Bill, nor shall any provision of this
Constitution or of any written law which requires any consent or
concurrence to the passing of a law or any consultation with respect
thereto, or which restricts the coming into force of a law after it is
passed or the presentation of a Bill to the Yang di-Pertuan Agong for
his assent.

(6) Subject to Clause (6A), no provision of any ordinance promulgated

under this Article, and no provision of any Act of Parliament which is
passed while a Proclamation of Emergency is in force and which declares
that the law appears to Parliament to be required by reason of the
 emergency, shall be invalid on the ground of inconsistency with any
provision of this Constitution.

(6A) Clause (5) shall not extend the powers of Parliament with respect
to any matter of Islamic law or the custom of the Malays, or with
respect to any matter of native law or custom in the State of Sabah or
Sarawak; nor shall Clause (6) validate any provision inconsistent with
the provisions of this Constitution relating to any such matter or
relating to religion, citizenship, or language.

(7) At the expiration of a period of six months beginning with the date
on which a Proclamation of Emergency ceases to be in force, any
ordinance promulgated in pursuance of the Proclamation and, to the
extent that it could not have been validly made but for this Article,
any law made while the Proclamation was in force, shall cease to have
effect, except as to things done or omitted to be done before the
expiration of that period.

(8) Notwithstanding anything in this Constitution -

(a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause

(1) and Clause (2B) shall be final and conclusive and shall not be
challenged or called in question in any court on any ground; and

(b) No court shall have jurisdiction to entertain or determine any

application, question or proceeding, in whatever form, on any ground,
regarding the validity of -

(i) a Proclamation under Clause (1) or of a declaration made in such

Proclamation to the effect stated in Clause (1);

(ii) the continued operation of such Proclamation;

(iii) any ordinance promulgated under Clause (2B); or

(iv) the continuation in force of any such ordinance.

(9) For the purpose of this Article the Houses of Parliament shall be
regarded as sitting only if the members of each House are respectively
assembled together and carrying out the business of the House.(76)

Appendix II

Article 356 Provisions in case of failure of constitutional machinery in

States(77)

(1) If the President, on receipt of a report from the Governor of a

State or otherwise, is satisfied that a situation has arisen in which
the Government of the State cannot be carried on in accordance with the
provisions of this Constitution, the President may by Proclamation -

(a) assume to himself all or any of the functions of the Government of

the State and all or any of the powers vested in or exercisable by the
Governor or any body or authority in the State other than the
Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the

President to be necessary or desirable for giving effect to the
objects of the Proclamation, including provisions for suspending in
whole or in part the operation of any provisions of this Constitution
relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to

assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend in whole or in part the operation of any
provision of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequent

Proclamation.

(3) Every Proclamation under this article shall be laid before each
House of Parliament and shall, except where it is a Proclamation
revoking a previous Proclamation, cease to operate at the expiration of
two months unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament:

Provided that if any such Proclamation (not being a Proclamation

revoking a previous Proclamation) is issued at a time when the House of
the People is dissolved or the dissolution of the House of the People
takes place during the period of two months referred to in this clause,
and if a resolution approving the Proclamation has been passed by the
Council of States, but no resolution with respect to such Proclamation
has been passed by the House of the People before the expiration of that
period, the Proclamation shall cease to operate at the expiration of
thirty days from the date on which the House of the People first sits
after its reconstitution unless before the expiration of the said period
of thirty days a resolution approving the Proclamation has been also
passed by the House of the People.

(4) A Proclamation so approved shall, unless revoked, cease to operate

on the expiration of a period of six months from the date of issue of
the Proclamation:

Provided that if and so often as a resolution approving the continuance

in force of such a Proclamation is passed by both Houses of Parliament,
the Proclamation shall, unless revoked, continue in force for a further
period of six months from the date on which under this clause it would
otherwise have ceased to operate, but no such Proclamation shall in any
case remain in force for more than three years:

Provided further that if the dissolution of the House of the People

takes place during any such period of six months and a resolution
approving the continuance in force of such Proclamation has been passed
by the Council of States, but no resolution with respect to the
continuance in force of such Proclamation has been passed by the House
of the People during the said period, the Proclamation shall cease to
operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution unless before
the expiration of the said period of thirty days a resolution approving
the continuance in force of the Proclamation has been also passed by the
House of the People:

Provided also that in the case of the Proclamation issued under clause
(1) on the 11th day of May, 1987 with respect to the State of Punjab,
the reference in the first provision to this clause to 'three years'
shall be construed as a reference to five years.

(5) Notwithstanding anything contained in clause (4), a resolution with

respect to the continuance in force of a Proclamation approved under
clause (3) for any period beyond the expiration of one year from the
date of issue of such Proclamation shall not be passed by either House
of Parliament unless -

(a) a Proclamation of Emergency is in operation, in the whole of India

or, as the case may be, in the whole or any part of the State, at the
time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force of

the Proclamation approved under clause (3) during the period specified
in such resolution is necessary on account of difficulties in holding
general elections to the Legislative Assembly of the State concerned:

Provided that nothing in this clause shall apply to the Proclamation

 issued under clause (1) on the 11th day of May, 1987 with respect to
the State of Punjab.

THE ROLE OF FOREIGN PRECEDENTS IN A COUNTRY’S LEGAL SYSTEM

Lecture at Northwestern University, Illinois (October 28, 2008)
By Justice K.G. Balakrishnan, Chief Justice of India
--------------------------------------------------------------------------------------------
Ladies and Gentlemen,
I am grateful for the opportunity to speak here today. The topic that I am
supposed to speak on has been very contentious amongst the legal community in the
United States. Sitting justices of the United States Supreme Court as well as eminent
academics have taken strong positions to justify or oppose the citation of foreign
precedents in constitutional cases. As a representative of the Indian judicial system, the
most appropriate thing for me to do is to present an ‘outsider’s view’ of this debate and
then briefly comment on how foreign precedents have been treated by the higher
judiciary in India.
At the outset it must be clarified that reliance on foreign precedents is necessary
in certain categories of appellate litigation and adjudication. For instance in litigation
pertaining to cross-border business dealings as well as family-related disputes, the
actual location of the parties in different jurisdictions makes it necessary to cite and
discuss foreign statutory laws and decisions. Hence, domestic courts are called on to
engage with foreign precedents in fields such as ‘Conflict of Laws’. Furthermore, Courts
are also required to look into the text and interpretations of international
1
 instruments (i.e. treaties, conventions, declarations) if their respective countries
are party to the same. However, the room for debate arises in respect of the citation of
foreign precedents to decide on questions pertaining to domestic constitutional law. It is
in this regard that some leading American judges and academics have expressed their
opposition to the reliance on foreign law – especially when the same has been done to
interpret Constitutional provisions in a liberal manner.
All of us will readily agree to the observation that constitutional systems in
several countries, especially those belonging to the Common-law tradition have been
routinely borrowing doctrine and precedents from each other. In the early years of the
United Nations system a period which saw decolonisation in most parts of Asia and
Africa, many new Constitutions incorporated mutually similar provisions by drawing from
ideas embedded in international instruments such as the United Nations Charter and
the Universal Declaration of Human Rights (UDHR). The European Convention on the
Protection of Human Rights and Fundamental Freedoms (ECHR) which was adopted in
1953 also became a source for doctrinal borrowing by the emerging constitutional
systems. In later years the provisions of the International Covenant on Civil Political
Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) have also emerged as reference-points for such constitutional borrowing.1
Much of this constitutional
1
See generally: Bruce Ackerman, ‘The Rise of World Constitutionalism’, 83
University of Virginia Law Review 771-797 (1997)
2
 transplantation that has taken place through the means of international
instruments has also exported certain distinct features of the United States Constitution
– such as a bill of rights, ‘judicial review’ over legislation and limits placed on
governmental power through ideas such as ‘equal protection before the law’ and
‘substantive due process’. It is only natural that the newly created constitutional systems
have sought to learn from long-established ones such as those of the United States of
America. While this transplantation of constitutional doctrines was predominant in the
case of most newly liberated countries in Asia and Africa, the Soviet-led bloc followed a
divergent path by prioritizing collective socio-economic objectives over basic individual
rights. Since the 1990’s, the dismantling of communist rule in the former USSR and
Eastern Europe has prompted a new wave of constitutionalism, with several countries
adopting written constitutions that provide for basic civil-political rights enforceable
through judicial means.2
2
See generally: Clair L’Hereux-Dube, ‘Human Rights: A worldwide dialogue’ in B.N.
Kirpal et. al. (eds.), Supreme but not Infallible- Essays in Honour of the Supreme Court
of India (New Delhi: Oxford University Press, 2000) at p. 214-231
 3
See generally: Mark Tushnet, ‘The possibilities of Comparative Constitutional
Law’, 108 Yale Law Journal 1225 (1999); Sujit Chaudhary, ‘Globalisation in search of
In recent years, the decisions of Constitutional Courts in common law
jurisdictions such as South Africa, Canada, New Zealand and India have become the
primary catalyst behind the growing importance of comparative constitutional law. In
these jurisdictions, reliance on foreign precedents has become commonplace in public
law litigation.3 Anne-Marie Slaughter used the
3
justification: Toward a theory of Comparative Constitutional Interpretation’, 74 Indiana
Law Journal 819 (1999); Martha Nussbaum, ‘Introduction to Comparative
Constitutionalism’, 3 Chicago Journal of International Law 429 (2002)
4
Refer: Anne-Marie Slaughter, ‘The typology of transjudicial communication’, 29
University of Richmond Law Review 99-137 (1994)
expression ‘transjudicial communication’ to describe this trend. In a much-cited
article published in 1994,4 she described three different ways through which foreign
precedents are considered – namely:
• Firstly, through ‘vertical’ means, i.e. when domestic courts refer to the decisions of
international adjudicatory institutions, irrespective of whether their countries are
parties to the international instrument under which the said adjudicatory
institution functions. For example, the decisions of the European Court of Human
Rights (ECHR) and European Court of Justice (ECJ) have been extensively cited
by courts in several non-EU countries as well. This also opens up the possibility
of domestic courts relying on the decisions of other supranational bodies in the
future.
• Secondly, through ‘horizontal’ means, i.e. when a domestic court looks to
precedents from other national jurisdictions to interpret its own laws. In common
law jurisdictions where the doctrine of ‘stare decisis’ is followed, such
comparative analysis is considered especially useful in relatively newer
constitutional systems which are yet to develop a substantial body of case-law.
For example, the Constitutional Courts set up in Canada and South Africa have
frequently cited foreign precedents to interpret the bill of rights in their respective
legal systems.

4
 Comparative analysis is also a useful strategy to decide hard constitutional cases,
where insights from foreign jurisdictions may insert a fresh line of thinking.
• Thirdly, through ‘mixed vertical-horizontal’ means – i.e. when a domestic court may
cite the decision of a foreign court on the interpretation of obligations applicable
to both jurisdictions under an international instrument. For example, Courts in
several European countries freely cite each other’s decisions that deal with the
interpretation of the growing body of European Community (EC) law. It is
reasoned that if judges can directly refer to applicable international obligations,
they should also be free to refer to the understanding and application of the same
in other national jurisdictions.

In examining these three means of ‘transjudicial communication’ one can easily

discern that references to foreign law contemplate both international and comparative
law. While reference to evolving international human rights norms and decisions of
international adjudicatory institutions is accorded a certain degree of legitimacy in most
liberal constitutional systems, there has been considerable opposition to comparative
analysis in constitutional cases in the United States. In recent years, much of this
resistance has been expressed in respect of the U.S. Supreme Court’s decisions in
Atkins v. Virginia [2002], Lawrence v. Texas [2003] and Roper v. Simmons [2005].
5
5
536 U.S. 304 (2002)
6
539 U.S. 558 (2003)
7
478 U.S. 186 (1986)
8
543 U.S. 551 (2005)
9
492 U.S. 361 (1989)
• In Atkins v. Virginia [2002],5 the majority opinion ruled against the constitutionality
of the death penalty for mentally-retarded offenders, and pointed to the
international disapproval of the same.
• In Lawrence v. Texas [2003],6 the majority opinion held that the criminalisation of
consensual homosexual conduct violated the ‘Due Process’ clause enshrined in
the Fourteenth Amendment. In the process the Court overruled a previous
decision given in Bowers v. Hardwick [1986)],7 wherein it was had held that there
was no fundamental right to engage in consensual sodomy.
• In Roper v. Simmons, [2005],8 the majority ruled against the constitutionality of
administering the death penalty to juvenile offenders, while overruling a previous
decision on the point given in Stanford v. Kentucky [1989].9 For several years,
there has been a prominent dissonance over the citation of foreign precedents
between liberally inclined judges such as Justice Stephen Breyer and Justice
Antonin Scalia who is known to hold conservative positions. For instance in
Stanford v. Kentucky [1989], the majority had ruled in favour of the death penalty
for juveniles and Justice Scalia had rejected arguments pointing to the abolition
of the same in several Western European countries. With the overruling of this
case in Roper v. Simmons [2005], Justice Scalia reiterated his opposition to the

6
10
For an academic opinion surveying the use of foreign law by the U.S. Supreme Court,
See: Steven G. Calabresi and Stephanie Dotson Zimdahl, ‘The Supreme Court and
foreign sources of law: Two hundred years of practice and the juvenile death penalty
decision’, 47 William and Mary Law Review 743 (December 2005)
11
Cited from: Mark C. Rahdert, ‘Comparative Constitutional Advocacy’, 56 American
University Law Review 553 (2007)
citation of foreign precedents in his dissenting opinion,10 where the majority opinion
delivered by Justice Anthony Kennedy referred to several international
instruments as well as foreign decisions to rule against the constitutionality of the
death penalty for juvenile offenders. In the said opinion the right against cruel
and unusual punishment enumerated in the Eighth amendment of the U.S.
Constitution was read expansively by way of reliance on foreign materials.
Since the delivery of that opinion, the balance in the US Supreme Court has tilted
in favour of conservatism. With the passing away of Chief Justice Rehnquist and the
retirement of Justice Sandra Day O’Connor, the Bush administration expectedly
preferred to replace them with judges holding conservative inclinations. Justice Scalia’s
viewpoint has found more support with the appointment of Chief Justice John Roberts
Jr. and Justice Samuel Alito Jr., both of whom indicated their opposition to the citation of
foreign precedents during the U.S. Senate hearings for the confirmation of their
appointments.11
As per my understanding there have been three distinct objections made against
the citation of foreign precedents in constitutional cases. The first objection is derived
from the ‘separation

7
 of powers’ doctrine, the second one invokes the ‘exceptionalism’ of the
Constitutional system of the United States and the third criticism is based on the idea
that reliance on foreign precedents expands judicial discretion.
• The first objection is based on the reasoning that since foreign judges are not
accountable to the electorate or any public agency, reliance on their decisions
amounts to an anti-democratic exercise. It is argued that under the doctrine of
‘Separation of Powers’, the incorporation of foreign law by way of entering into
treaties or international diplomacy is a function that clearly lies in the executive
domain. The enforcement of these international obligations is subject to a further
check by way of legislative approval. The legislature is also free to borrow from
foreign statutes and precedents in shaping domestic laws, since it is a body
constituted by the electoral process. The ‘unelected’ judiciary does not have a
role to play in incorporating legal prescriptions which have originated abroad. In
this regard, Justice Scalia has argued that while it is acceptable to discuss and
rely on foreign law in a legislative process such as the framing of a Constitution,
the same should not be done by the judiciary. He has also invoked the
‘Originalist’ approach to constitutional interpretation by observing that the framers
did not intend any reliance on foreign sources, since there is no mention of this
idea in the constitutional text. Arguments have also been made to the effect that
reliance on foreign precedents is an example of

8
12
Arguments based on the ‘exceptionalism’ of the American society and polity have
been put forward in the following article: Steven G. Calabresi, ‘A shining city on a hill:
American Exceptionalism and the Supreme Court’s practice of relying on foreign law’,
86 Boston University Law Review 1335 (December 2006)
‘judicial elitism’ which is often at odds with the opinions of the majority of the
common people. This argument based on the idea of ‘separation of powers’
doesn’t appear to hold too much water since one of the principal functions of
judges in a constitutional court is to protect the countermajoritarian safeguards
enumerated in the Constitution – for instance the rights of religious minorities,
indigenous groups and affirmative action for historically disadvantaged
communities. Very often the understanding of these safeguards can benefit from
an evaluation of how similar provisions have been interpreted and applied in
other jurisdictions.
• The second criticism draws from the idea of ‘exceptionalism’ or the unique status of
the United States amongst the comity of nations. It is vehemently asserted that
the framers of the United States Constitution aimed to establish a polity which
was a radical departure from the political institutions of the ‘Old World’ and that
the American system is meant to lead the way for other countries and not vice
versa.12 This ‘exceptional’ status is asserted by referring to several social,
economic and political features prevalent in the country – such as
constitutionalism, rule of law, a democratic tradition, individual liberties, respect
for private property and a popular culture which promotes enterprise, respect for
 morals and progress. This line of reasoning is rather rhetorical since any country
in the world can

9
 claim such an ‘exceptional’ status for itself. A much better formulation of this idea is
that different countries face different socio-political circumstances and the
resolution of constitutional questions must address the local conditions rather
than relying on foreign law.
• The most credible objection pertains to the expansion of ‘judicial discretion’. Chief
Justice John Roberts Jr. has observed that if judges are allowed to freely rely on
foreign precedents, there is a tendency to arbitrarily cite decisions favourable to
their personal viewpoints. In such a scenario, judges would be free to indulge in
‘cherry-picking’ for justifying their decisions rather than engaging in a rigorous
inquiry into domestic precedents. Such a consequentalist approach to decision-
making is considered to be one which dilutes the discipline and rigour expected
of a common law judge who should give due regard to the doctrine of ‘stare
decisis’. Furthermore, the decisions in Atkins, Lawrence and Roper have raised
apprehensions of a distinct liberal bias in the invocation of international and
comparative law. We should be careful not to confuse the debate on the citation
of foreign precedents as one which corresponds to a political divide between
conservative and liberals. Instead, it should be viewed from the standpoint of
ensuring the integrity of the judicial process. Another significant question is
whether it is acceptable to rely on foreign decisions as ‘tie-breakers’ in hard
constitutional cases. This is of course linked to the argument that foreign
decisions should not be discussed while confronting the unique socio-political
conditions

10
13
See: Adam M. Smith, ‘Making itself at home: Understanding foreign law in domestic
jurisprudence – The Indian case’, 24 Berkeley Journal of International Law 218 (2006)
14
See: Rajeev Dhavan, ‘Borrowed Ideas: On the Impact of American Scholarship on
Indian Law’, 33(3) The American Journal of Comparative Law 505-526 (Summer 1985)
in each country. If foreign precedents are indeed considered, a practical question
arises as to the relative weightage to be assigned to decisions from different
foreign jurisdictions.

It is at once surprising and disappointing to learn of the extent of distrust of foreign

precedents amongst some prominent members of the legal community in the U.S.A.
American Constitutional Law has been a source of inspiration and doctrinal borrowing
for many liberal constitutional systems that were created after it. Judges in India
routinely cite precedents from U.S. Courts besides other foreign jurisdictions and
international law.13 There is also a distinct tendency on part of Indian Courts to refer to
academic writings, especially those from law reviews published by American
Universities.14 It is obvious that the mere citation of a foreign decision does not imply
that a domestic court is bound to follow the former. A domestic court’s citation of a
foreign precedent may result in an approval or distinction from the fact situation before
it. In any case, a foreign precedent should only be assigned persuasive value and
cannot be relied on when it clearly runs contrary to existing domestic law. It is true that
the socio-political conditions prevailing in different jurisdictions will pose legal problems
particular to them, but there is no reason why constitutional courts in these countries
should not benefit from each other’s experiences in tackling them. As I will proceed to
illustrate later in this speech, Indian Courts have looked to international as well
11
15
See: Vicki Jackson, ‘Constitutions as ‘Living Trees’? Comparative Constitutional Law
and interpretive metaphors’, 75 Fordham Law Review 921 (November 2006)
as comparative sources as part of creative strategies to read in previously
unenumerated norms into the ‘protection of life and liberty’ guaranteed under Article 21
of the Indian Constitution. Reliance on foreign precedents has been a vital
instrumentality for the Indian Supreme Court’s decisions which have extended
constitutional protection to several socio-economic entitlements and advanced causes
such as environmental protection, gender justice and good governance among others.
Before describing this trend in further detail, it will be useful to examine the various
structural factors that encourage ‘transjudicial communication’.
• With the ever-expanding scope of international human rights norms and
international institutions dealing with disparate issues such as trade liberalisation,
climate change, war crimes, law of the sea and cross-border investment disputes
among others, there is a concomitant trend towards convergence in the domestic
constitutional law of different countries. In this era of globalization of legal
standards, there is no reason to suppress the judicial dialogue between different
legal systems which build on similar values and principles.15
• Another factor which sows the seeds for more ‘transjudicial communication’ is the
increasing internationalisation of legal education. For instance, I have been made
to understand that the leading law schools in Europe as well as the United States
are increasingly drawing students from more and more
12
 countries, especially for postgraduate and research courses. The diversity in the
classroom contributes to cross-fertilisation of ideas between individuals
belonging to different jurisdictions. When students who have benefited from
foreign education take up careers in their respective country’s bar and judiciary,
they bring in the ideas imbibed during their education.
• Access to foreign legal materials has become much easier on account of the
development of information and communication technology. To take the example
of India, until a few years ago subscriptions to foreign law reports and law
reviews was quite expensive and often beyond the reach of many practitioners
and judges as well. However, the growth of the internet has radically changed the
picture. The decisions of most Constitutional Courts are uploaded on freely
accessible websites, hence enabling easy access all over the world.
Furthermore, commercial online databases such as the LexisNexis and Westlaw
among others have ensured that judges, practitioners and law students all over
the world can readily browse through materials from several jurisdictions. Such
easy access to international and comparative materials has also been the key
factor behind the emergence of internationally competitive commercial law firms
and Legal Process Outsourcing (LPO) operations in India.
• The ever-increasing person-to-person contacts between judges, lawyers and
academics from different jurisdictions have been the most important catalyst for
‘transjudicial communication’. This takes place in the form of personal

13
16
The text of the principles has been reproduced in: Michael Kirby, ‘Domestic
Implementation of International human rights norms’, 1999 Australian Journal of Human
Rights 27
17
The subsequent Commonwealth judicial colloquia were held in Harare, Zimbabwe
(1989); in Banjul, The Gambia (1990); in Abuja, Nigeria (1991); in Balliol College,
Oxford, England (1992); in Bloemfontein, South Africa (1993); and in Georgetown,
meetings, judicial colloquia and conferences devoted to practice areas as well as
academic discussions.

While there are numerous examples of such person-to-person interaction, a notable

example is that of an initiative taken by the Commonwealth Secretariat in association
with INTERIGHTS (International Centre for the Legal Protection of Human Rights). In
February 1988, the first Commonwealth judicial colloquium held in Bangalore was
attended by several eminent judges from different countries – among them being
Justice P.N. Bhagwati, Justice Michael Kirby, Lord Lester, Justice Mohammed Haleem
and Justice Ruth Bader Ginsburg. That colloquium resulted in the declaration of the
Bangalore Principles which deal with how national courts should absorb international
law to fill existing gaps and address uncertainties in domestic law.16 Special emphasis
was laid on the handling of unenumerated norms so as to strengthen the ‘rule of law’
and constitutional governance. In December 1998, the Commonwealth Judicial
Colloquium on the ‘Domestic Application of International Human Rights norms’ was
again held in Bangalore. The participants affirmed there commitment to the principles
that had been declared in the 1988 colloquium as well as the deliberations in
subsequent colloquia held in different commonwealth countries.17 It may be useful
14
Guyana (1996). Refer: Lord Lester of Herne Hill, ‘The challenge of Bangalore – Making
human rights a practical reality’, 3 European Human Rights Law Review 273-292 (1999)
to refer to the first principle which was part of the restatement and further
development of the 1988 principles:
“1. Fundamental human rights and freedoms are universal. They find expression in
constitutional and legal systems throughout the world; they are anchored in the
international human rights codes to which all genuinely democratic states adhere; their
meaning is illuminated by a rich body of case law, both international and national.”
Despite considerable opposition from various quarters, the Bangalore principles
have gradually found wide acceptance with judges in many jurisdictions looking towards
the growing body of international human rights law to streamline their domestic laws.
This also creates compelling reasons for constitutional courts in different jurisdictions to
look to each other’s decisions. The growth of constitutionalism will be better served with
less resistance to the increasingly important discourse of comparative constitutional law.
It is through this framework of recognizing a growing international consensus on the
understanding of individual as well as group rights that judges in constitutional courts
can lead the way in engineering socio-political reforms in their respective countries.
It is precisely this role of precipitating social transformation which has been actively
played by the Supreme Court of India. The modern Indian legal system is often
described as a colonial inheritance, but
15
18
Kharak Singh v. State of Uttar Pradesh & Ors., AIR 1963 SC 1295 (Unauthorised
police surveillance was considered as violative of ‘right to privacy’)
19
Bennett & Coleman v. Union of India & Ors., AIR 1973 SC 106 (Challenge against
governmental limits on import of newsprint)
20
Maneka Gandhi v. Union of India, AIR 1978 SC 597 (Challenge against government’s
refusal to issue passport to petitioner)
21
Bachan Singh v. Union of India, AIR 1980 SC 898 (majority opinion approving of death
penalty in ‘rarest of rare’ cases); AIR 1982 SC 1325 (Justice P.N. Bhagwati’s dissenting
opinion)
22
Secretary, Information & Broadcasting v. Cricket Association of Bengal & Ors., AIR
1995 SC 1236 (Question pertained to government’s authority to restrain private parties
from acquiring rights to broadcast cricket matches)
some significant changes were made with the adoption of our Constitution in 1950.
Our framers consciously chose to include a bill of rights under Part III of the Constitution
of India and made them enforceable through the means of ‘judicial review’ enumerated
in Article 13 and the ‘right to seek remedies for violation of fundamental rights’ under
Article 32. However, under Article 372(1) the pre-independence laws were persisted
with to the extent that they were consistent with the fundamental rights. Article 41(c)
mandates respect for international law but does not directly mention foreign law.
From the outset, Courts in independent India have frequently relied on decisions
from other common law jurisdictions, the most prominent among them being of the
United Kingdom, United States of America, Canada and Australia. The opinions of
foreign courts have been readily cited and relied on in landmark constitutional cases
dealing with questions such as the ambit of the right to privacy,18 freedom of press,19
restraints on foreign travel,20 the constitutionality of the death penalty21, broadcasting
rights22 and prior restraints on
16
23
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
24
Chapter 2, Section 39(1) of the South African Constitution declares that: When
interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that
underlie an open and democratic society based on human dignity, equality and
freedom; (b) must consider international law; and (c) may consider foreign law.
While reliance on foreign precedents was considerable in the early years of the
Supreme Court of India, the same can be said to have subsided to an extent in recent
decades with the evolution of a body of domestic precedents. However, in quantitative
terms the citation of foreign cases at present is the highest ever in the history of our
court. This is so on account of the continuous increase in the caseload before our
higher judiciary. The experience of considerable reliance on foreign law in the early
years of a Constitutional Court’s existence has also been shared with the constitutional
courts created in South Africa and Canada. In fact, the South African Constitution has
an express provision which mandates the consideration of international as well as
foreign law in interpreting its’ bill of rights.publication.23 24
Since the late 1970’s the higher judiciary in India has also taken on an activist role,
especially to extend legal protection to the interests of the weak and underprivileged
sections of society. It has fashioned two general strategies to expand access to justice
and deliver effective remedies to those parties who would otherwise be unable to move
the Constitutional Courts on account of lack of financial resources and limited
awareness about their legal entitlements. In a society beset with poverty, illiteracy and
entrenched social discrimination based on criteria such as caste, religion and
17
25
AIR 1978 SC 597
gender - it was important for the Supreme Court of India to re-invent its role. The two
strategies in question are the device of Public Interest Litigation (PIL) and the creative
expansion of the ‘protection of life and liberty’ enumerated under Article 21 of the
Constitution of India. Reliance on foreign law was instrumental to the unfolding of both
of these ‘activist’ strategies. In respect of Public Interest Litigation (PIL), the dilution of
common law requirements such as ‘locus standi’ as well as the grant of innovative
remedies such as a ‘continuing mandamus’ to executive agencies were original
creations of Indian judges, but considerable reliance was also placed on the practices
evolved through ‘Class Action lawsuits’ in the United States. However, it is in the
expansion of the understanding of Article 21 that comparative analysis has played a
significant role.
In Maneka Gandhi v. Union of India,25 a case concerning restrictions on the issue of
a passport to the petitioner, the Supreme Court of India read in the ‘substantive due
process guarantee’ into the language of Article 21. Prior to this decision, the Indian
Courts had applied the lower threshold of ‘procedure established by law’ to evaluate the
validity of governmental action that curtailed personal liberty. This decision heavily drew
from U.S. decisions and laid down the position that governmental action was subject to
scrutiny on multiple grounds such as fairness, reasonableness and non-arbitrariness.
By enumerating the theory of ‘inter-relationship between rights’ a foundation was laid for
the creative expansion of the ambit of Article 21.
18
26
AIR 1978 SC 802
27
AIR 1981 SC 928
28
AIR 1980 SC 1579
29
AIR 1979 SC 1360
In M.H. Hoskot v. State of Maharashtra,26 the Supreme Court explicitly relied on
American decisions to hold that indigent persons were entitled to receive free legal
services. The idea of ‘substantive due process’ was interpreted so as to imply that free
legal services were an ‘imperative processual piece of criminal justice’ implicit in Article
21. A few years later, the Court reinforced this entitlement in Khatri v. State of Bihar,27
wherein it held that the state could not plead lack of financial resources as a ground for
not extending legal services to indigent persons.
The decision in Sunil Batra v. Delhi Administration (II)28 prominently invoked
academic Edward Corwins’s writings on the Eighth amendment (‘right against cruel and
unusual punishment’) in order to implement reforms in prison conditions. Reliance was
also placed on a British parliamentary white paper entitled “People in Prison”. In the
said judgment, lower court judges were directed to personally inspect their jurisdictional
prisons once a week, receive complaints from individual prisoners, take remedial
measures and provide grievance mechanisms that were easily accessible to all
prisoners. In Hussainara Khatoon (IV) v. Home Secretary, State of Bihar,29 the
Supreme Court took cognizance of news items and directed the release of ‘undertrial’
prisoners who had been in custody for periods longer than the maximum permissible
sentences for their
19
30
AIR 1986 SC 515
31
[1989] 2 SCC 574
32
Particular reliance was placed on the ‘Clear and present danger’ test for placing
restraints on speech that was developed in Schenck v. United States, 247 U.S. 47
(1919)
33
AIR 1995 SC 264
alleged offences.
With regard to the extent of ‘freedom of speech and expression’, the Indian Courts
have repeatedly cited decisions related to the First Amendment to the U.S. Constitution.
In Indian Express Newspapers v. Union of India,30 the Supreme Court held that the
imposition of a tax on the publication of newspapers violated the constitutional right to
freedom of expression, which also incorporates freedom of the press. In Rangarajan v.
Jagjivan Ram & Ors and Union of India,31 the Court ruled that the censorship of a film
which criticised the policy of caste-based reservations in public employment was
inconsistent with the principle of freedom of expression, again relying heavily on English
and American case law.32 Similarly, in R. Rajagopal v. State of Tamil Nadu,33 American
cases were cited to reject the constitutional validity of ‘prior restraints’ placed on the
publication of a convict’s biography which detailed relations between some politicians
and criminals.
With the dilution of the requirement of ‘locus standi’ in Public Interest Litigation (PIL)
more and more voluntary sector organisations have moved the higher judiciary in India,
seeking constitutional remedies to guarantee civil liberties as well as socio-economic
20
34
Olga Tellis v. Bombay Municipal Corporation & Ors., AIR 1986 SC 180
35
Parmanand Katara v. Union of India, AIR 1989 SC 2039
36
J.P. Unnikrishnan v. State of Andhra Pradesh & Ors., AIR 1993 SC 2178
37
AIR 1991 SC 420
38
(1995) 2 SCC 377
39
(1987) 2 SCR 530; Continuing with the same trend, in Law Society of India v.
Fertilizers and Chemicals Travancore, (AIR 1994 Kerala 308) the Court relied on a 1984
U.N. Resolution to reiterate that the right to a wholesome environment was implicit in
Article 21 of the Indian Constitution.
entitlements such as housing,34 health35 and education36. The NGO’s (Non-
governmental organisations) have raised important questions that have also had a
bearing on causes such as environmental protection, gender justice and good
governance. In many cases the focus has been on the implementation of existing rights
but the Indian Supreme Court has also invoked international and comparative sources
to expand the ambit of these rights. The Court has ruled that the ‘protection of life and
liberty’ under Article 21 of the Indian Constitution, should be understood in conjunction
with Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and
Article 3 of the Universal Declaration of Human Rights (UDHR).
In a series of decisions invoking international legal materials, the Court has articulated
and expanded the ‘right to a healthy environment’ as an extension of the right to life and
personal liberty. In Subhash Kumar v. State of Bihar,37 it was held that a slow, steady,
and subtle method of extinguishment of the quality of life, i.e. severe pollution - was
violative of the right to life. Likewise, in Virender Gaur v. State of Haryana,38 it was
reiterated that Article 21 includes a right to a clean environment. In M.C. Mehta v. Union
of India,39 the Court discussed several provisions of the 1972 United Nations
Stockholm
21
40
AIR 1998 SC 889
41
AIR 1997 SC 568
42
(2002) 5 SCC 294
Conference on Human Environment, even though the same was merely a
declaration and did not impose any domestic obligations.
The invocation of international and comparative law has also been significant in the
Indian judiciary’s efforts to improve accountability in public life. In Vineet Narain v. Union
of India,40 wherein several incumbent ministers and serving bureaucrats were alleged
to be involved in money-laundering, the Court explicated seven principles of public life,
and directed the establishment of the Central Vigilance Commission (CVC) an institution
akin to the English ‘Director of Prosecutions’ for investigating governmental corruption
and wrongdoing. In People's Union for Civil Liberties v. Union of India41 and
Association for Democratic Reforms v. Union of India,42 the Supreme Court of India
directed that candidates seeking election to legislative bodies at all levels were bound to
disclose their educational, financial and criminal antecedents for the information of the
electorate. The voters’ right to information was understood as flowing out of the
‘freedom of speech and expression’ on the premise that an informed choice was
necessary for a meaningful exercise of ‘free expression’ through the act of voting. In
these cases, reliance was placed on the ‘Beijing Statement of Principles of the
Independence of the Judiciary’ and the International Covenant on Civil Political Rights
(ICCPR).
22
43
(1997) 6 SCC 241
In the realm of gender justice it is important to mention the decision in Vishaka v. State
of Rajasthan.43 This litigation originated on account of the gang-rape of a social worker
and the Court proceeded to frame guidelines for the prevention of and redressal for
sexual harassment at the workplace. This act of ‘judicial legislation’ was prompted by
the absence of any statutory law on the point and extensive reliance was placed on the
provisions of the Convention for Elimination of all forms of Discrimination Against
Women (CEDAW).
As would be evident to all of you by now, the citation of foreign precedents is a
routine practice in constitutional litigation in India. However, the practice of referring to
international instruments and foreign decisions cannot be carried on in an undisciplined
manner. There is no doubt that due consideration of the constitutional experience in
other countries adds depth to the adjudication of domestic constitutional questions.
However, judges should be cautious against giving undue weightage to precedents
decided in entirely different socio-political settings. In the United States there is
considerable opposition to the recognition of international human rights norms when
they tend to curtail popular opinions on contentious issues. However, in India the
importation of international and comparative law has been part of a conscious strategy
of social transformation wherein previously disadvantaged groups have been made
aware of their basic rights. Hence, the arguments made against the citation of foreign
precedents in India are substantially different from the debate in the U.S. setting. For
instance, in the early years of
23
44
Observations of Judge Guido Calabresi in United States v. Then, 56 F.3d 464, 468-
469 (1995)
India’s constitutional experience, a vocal minority argued against the imposition of
an elitist and Western Constitution and instead made a case for restoration of
indigenous laws that were largely based on religious practices. Our leaders as well as
judiciary chose to ignore these calls for revivalism with the firm belief that it was the
emerging language of international human rights which would transform India into a
modern liberal democracy.
In recent years, India has undergone tremendous changes on account of
globalisation – which has enabled a freer flow of goods, capital and ideas across
national boundaries. There is no reason for restraining the free flow of ideas when it
comes to the judicial system. Of course, the reliance on foreign precedents should also
be shaped by the discipline expected of a common law judge in weighing the credibility
and persuasive value of precedents from different legal systems. The phenomenon of
‘transjudicial communication’ is one which needs to be studied with keen interest and
further refined. It would indeed be a travesty to simplistically reduce it to a debate
between liberalism and conservatism. To conclude, I would like to refer to an analogy
drawn by Judge Guido Calabresi who observed that just as parents should be willing to
learn from their children, the Courts in the United States should also be willing to
examine decisions of foreign constitutional courts.44 There are already concerns being
expressed about the reducing influence of American decisions on foreign courts and this
trend can only be changed if
45
See: Adam Liptak, The waning influence of the US Supreme Court, International
Herald Tribune (September 17, 2008)
American Courts are willing to participate in the transjudicial dialogue.45
I would like to thank the management, faculty and students of Northwestern
University School of Law for inviting me to speak here today. I would like to express
special gratitude to the South Asian Law Students Association, the Muslim Law
Students Association and the International Law Society for co-ordinating this
programme.

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CONTENTS

Page

Chapter – I : Introduction 3

1. Equality and Its Bases.

2. Indian Case for Correcting Injustices.
3. Competing Claims.
4. American Paradigm.
5. Scheme of Study.

Chapter- II : Equality Justice and Affirmative Action : 13

Theoretical Considerations.

1. Nature of Equality and Justice.

2. Theories of Equality.

2.1.Liberal Theory of Equality : John Rawls.

2.2.Libertarian Perspective.

2.3.Marxian Radicalism.

2.4.Various Strands of Socialist Thinkers.

 3. Common Grounds of Distributive Justice.
4. Affirmative Action Programmes : Jurisprudential Basis

4.1.Merit Argument.

4.2.Rights Argument.

4.3.Efficiency Argument.

4.4.Balkanisation Argument.

Chapter- III : Indian Panorama of Equality and Justice : 36

Ancient and Modern.

1. Context of Indian Socio-Political Governance.

2. Varna System : The Classificatory Principle.
3. Deterioration of the Varna System into Rigid Caste System
4. Post Independent India : A New beginning.

4.1.Reservations in Legislative Bodies.

4.2.Reservations in Jobs (Government Services)

4.3.Reservations in Educational Institutions.

4.4.Preferences in Resource Distribution.

4.5.Action Plans and Amelioration Programmes.

5. General Observations.
Chapter- IV : Equality and Affirmative Action in U.S.A. 65

1. A Peep in to the History of Slave System.

2. Towards Equality.
3. Death of “Separate but Equal” Doctrine and Protective discrimination.
4. Competing Arguments.

Chapter- V : Evaluations and Conclusions. 79

1. Social Pathology : Caste and Race.

2. Benign Discrimination on Provisions.
3. Group Rights vs Individual Rights.
4. Policy vs Rights Approach.
5. Concluding Observations.

List of Cases. 91

Bibliography 93

List of Articles from Journals and Periodicals 95

 CHAPTER - I

Introduction

1. Equality and Its Bases.

Equality and Justice are the words of passion and power. 32[1] They were the watchwords
of the French Revolution, resulting in the declaration of the rights of men, issued by the
National Assembly of France after the fall of Bastille, “men are born equal and always
continue free and equal in respect of their rights” 33[2] American declaration of
Independence too declared in the same vien that “we hold these truths to be self
evident that all men are created equal. It has also been the distinguishing characteristic
of modern civilization that Equality should not merely be an abstract ideal but a
politically aggressive idea. It is generally accepted that it is indeed one of the most
deeply rooted conventions of contemporary political thought that the existence of
inequality is a legitimate provocation to social criticism. 34[3] And it was with this general
trend of politico-legal process the world over in the mind that the founding fathers of
Indian Constitution accepted and adored equality as one of the basic organizing
principles of Indian Constitution when it was brought into force in 1950.

Justice is integrally related to equality. In fact Aristotle treated justice as synonym of

equality. In his Nichomchean Ethics, he wrote Justice is equality as all men believe it to
be quite apart from any argument. Indeed in Greek the word Equality means justice.
Equality and justice are synonymous. To be just is to be equal and to be unjust is to be

32[1]
Constitution of India, H.M.Seervai, N.M.Tripathi, Bombay, 1989.
33[2]
Declarations of the Rights of Man, 1789.
34[3]
A.C.Kapoor, Principles of Political Science, S .Chand and Company, New Delhi, 1989.
unequal. 35[4]Aristotle talks of two kinds of Justice, distributive justice and corrective
justice. Distributive justice is manifested in the distribution of the honour, money, and
other things which fall to be divided among those who have a share in them. He then
identifies justice in this area as some sort of equality among those who have to share
the common grounds of honour.

Justice is an ethical standard of virtue in social and public relationships and consists in
observance of rules of equality. According to Aristotle equality means that things that are
alike should be treated alike and things that are unalike should be treated unalike.
Injustice arises when equals are treated unequally and also when unequals are treated
equally.36[5] Indeed everybody is not equal by nature, attainment or circumstances. The
varying needs of different people coming from different classes or sections of
population require differentiated and separate treatment. Prof. HLA Hart calls this
precept as a central element of the idea of justice. 37[6] But this precept of treating like
cases alike and different cases differently is incomplete as it lays down no standard for
determining the likeness or differences and developing such criteria of relevance has
occupied the philosophers for centuries.38[7]

Experiences of the past show that arbitrary differentiation have been made for the
characteristics which are beyond the control of individuals and groups and such
individuals and groups have been exploited for the purpose of ensuring the dominance
of certain groups or class of individuals. Justice requires equitable and just distribution
of social goods and resources or burdens and benefits but that has not been the case
in the past. A whole lot of people have been discriminated against and slavery and
serfdom justified on this or that ground right since the dawn of civilization in the east and
the west. Either one talks of the segregation of blacks in United States of America,
aparthied system of South Africa, or the plight of low caste people of India, all have
suffered the same fate, i.e. exploited and deprived for the reasons beyond their control.

Affirmative action programme are the tools to remove the present and continuing effects
of past discrimination, to lift the limitations in access to equal opportunities which has
been impeding the access of the classes of people to public offices and administration.
35[4]
Ethica Nicomchea, Book V Chapter VI, In the works of Aristotle, Vol-XII Sir David Ross 1966 Reprint.
36[5]
Aristotle, Ibid.
37[6]
H.L.A.Hart, The Concept of Law, (1961) p. 155.
38[7]
Upendra Baxi, Democracy, Equality and Freedom, Oxford University Press, New Delhi, 1992.
Such measures as protective discrimination or reservations are adopted to remedy the
continuing ill effects of prior inequalities stemming from discriminatory practices against
various classes of people which have resulted in their social, educational and economic
backwardness.39[8] It also addresses the infirmities caused due to purposeful societal
discrimination and attacks the perpetuation of such injustices.

2. Indian Case for Correcting Injustices.

It is with the lofty aim of alleviating the sufferings of the underprivileged and exploited
sections of Indian society, and for reconstruction and transformation of hierarchical
society emphasizing inequality, into a modern egalitarian society based on individual
achievement and equal opportunity for all that the protective discrimination programme
was devised under Indian Constitution. However this ideal of egalitarianism did not
come about in a day or two rather it was the culmination of a long process of change in
the traditional pattern of a medieval caste ridden society. These changes were in fact
the culmination of a long drawn process of transformation in the traditional pattern of
caste ridden society. Two factors basically worked as catalysts in the process, the
indigenous reforms and western influences. 40[9]

The Varna System of the early vedic period distorted and turned into a rigidified
hierarchical caste system continued to be stubborn fact of social life and was the factor
for introduction of preferential policies in pre and post independent India. The founding
fathers of Indian constitution were aware of the prevailing miserable and appalling
conditions of backward groups who had remained far behind and segregated from
national and social mainstream and had continued to be socially oppressed and
economically exploited for centuries due to various types of disabilities. They believed
that in a caste ridden society like ours where due to the historical reasons certain castes
and classes were for decades socially oppressed, economically condemned to live the
life of penury and want and educationally coerced to learn the family trade or
occupation and to take to education set out for each caste and class by society. 41[10] A

39[8]
Justice P.B.Sawant, in Indira Sawhney v. Union of India, AIR 1993, SC 477, Para 23.
40[9]
Varna system was the Traditional way of classifying people, in Ancient India, According to their occupation , for
details see chapter III Indian Panorama of Equality and Justice Ancient of Modern.
41[10]
KPK Shetty, Fundamental Rights and Socio-economic Justice in Indian Constitution (1969) for detailed analysis
of caste system, See G.S. Ghurye, Caste and Class in India, N.M.Tripathi Bombay (1967) Andre Betielle, Castes,
Old and the New (1969).
doctrinaire insistence on formal equality would in fact aggravate and perpetuate
inequality. Independent India , therefore has embraced equality as the cardinal value
against the background of elaborate valued and clearly perceived inequalities. 42[11]

Since the society as a whole was responsible for the handicaps resulting from societal
arrangements such as caste structures and group suppressions and these handicaps
were relevant differences among men, compensatory treatment for the socially and
historically disadvantaged groups was justified whenever these differences stood in the
way of equal access to basic advantages enjoyed by other citizens .Constitutionally
authorised preferences and protective discrimination created a lot of confusion and
conflicts leading to heated debates, court cases street violence and social unrest. 43[12]

India the biggest democratic system of the world, with a thousand million plus
population and mindboggling variety, a system which boasts of more than 5000 years
history and continued civilization and a hoary past, now mired in the under-
development and medieval hierarchical social order, but raring to rise into a economic
powerhouse of the world with convincing democratic credentials, have been
experimenting with the protective discrimination programmes of unprecedented variety.
Reservations in jobs, in educational institutions, legislatures and in the local self
governing institutions, better known as Panchayati Raj Institutions for scheduled castes,
scheduled tribes, other backward classes and now women has been a grand
experiment by any standard. It may also be noted that scheduled castes, scheduled
tribes and other backward classes are a whole cluster of thousands of castes spread
over length and breadth of the country. But has it succeeded in achieving the target it
has set before itself 53 years ago ? If yes to what extent ? If not why not ? shall be
some of the questions to be explored in this work.

An important thing to be noted in Indian context is that the kind of equality and justice
with protective discrimination programmes in its tag which have been experimented
upon during last half a centruy or so are of western vintage. As has been seen that
India had a hoary past and an elaborate socio-political system. Its civilization is very old
and has to its credit many distinction. As A.L. Basham puts it, “the ancient civilization of
India differes from those of Egypt , Mesopotamia and Greece, in that its traditions have
42[11]
Marc Galanter, Law and Society in Modern India, Oxford University Press, 1992.
43[12]
Dr. Parmanand singh, Equality, Reservation and Discrimination in India, Deep and Deep Publications, New
Delhi, 1985.
been preserved without a break down to the present day. Until the advent of the
archaeologists, the peasant of Egypt or Iraq had no knowledge of the culture of his
forefathers, and it is doubtful whether his Greek counterpart had any but the vaguest
ideas about the glory of Periclean Athens. In each case there had been an almost
complete break with the past. On the other hand, the earliest Europeans to visit India
found a culture fully conscious of its own antiquity – a culture which indeed exaggerated
that antiquity, and claimed not to have fundamentally changed for many thousands of
years. To this day legends known to the humblest Indian recall the names of shadowy
chieftains who lived nearly a thousands years before Christ, and the orthodox Brahman
in his daily worship repeats hymns composed even earlier. India has …. In fact the
oldest continuous cultural traditions of the world.” 44[13]

The interesting thing to be noted in this context is that though at the social plain, one
can feel that continuity of the past so distinctly, however on political plain, India has
had a complete break with its institutional practices with the advent of British era. With
the charter of Queen Elizabeth of 1600 authorising East India company to trade with the
countries of the east and far east, and the consequent colonisation of the land resulted
in India becoming a kind of experimental laboratory for testing the efficacy and validity
of various politico-legal institutions and concepts of the west. Starting with the Charter
of 1726 to the Government of India Act 1935, the colonial administration had more than
two scores of major reform packages involving legislative, Administrative, Judicial and
Land reforms. When finally the Independence of India Act 1947 was passed , The
British Parliamentary system of government was the only system with which the then
generation of political leaders was reasonably familiar with. And therefore came into
effect the Republican Constitution of India 1950 with Parliamentary form of Government
and common Law system of British vintage. That system has continued to this day and
is so well grounded in Indian soil today. How the western Political Institutions and
concepts , wrapped in local indigenous philosophy have functioned is a matter beyond
the scope of this study. However what is at stake is the concept of Justice and Equality
which had their full play in various hues and colours in post Independent India.

What is sought to be attempted here is to have a glimpse of the Ancient Model of

India’s socio-political governance reflecting on the concept of equality and justice and
then present modern India’s march towards egalitarianism with the help of the tools ,
concepts and institutions first experimented and developed in the western soil and
sought to be implemented in Indian situations. This might provide a better insight into
44[13]
A Wonder that was India, A.L.Basham, Roopa and Company, N.D.New Delhi, India, 1990
the issues and problems modern India is grappling with, with an open political system
which is called upon to undertake functions that even the comparatively developed
western political systems have been hesitant to undertake, while wholly lacking in
economic, technological and organizational resources of the latter. 45[14]

Historically speaking, the non western societies have taken over the ideological urges
and social aspirations of the western societies without either the time the latter had to
deal with primary issues of legitimacy or the economic and intellectual resources that
were built up before they broadened their political base to include mass functions. The
shrinking of the world has in this respect become a painful circumstance for India as it
has bequeathed to it social and political belief system without the concomitant material
and institutional props that are needed for stable and consistent change.

In India, the legacy of a long tradition, the integrity of an historical culture and the great
solidarities that were built through religious and social movements that were
characteristically Indian had for long acted as buffers against an inherently fissiparous
situation. The social system is undergoing profound change and has entered a process
of continuous fluidity and fragmentation.46[15]

The dillemas that India face today in terms of politico-legal issues should be seen in the
perspective of a system called upon to perform the uphill tasks of modernization with
open political system lacking in economic technological and organizational resources
and wholly devoid of the means and instrumentalities and sometimes even necessary
authority to put the power to effective use for solution of the pressing issues.

Since the politico legal developments of India are to be seen in the context of an
ancient land slowly seeking to incorporate into its womb the best elements of the
culture of modern world, without at the same time destroying its age old traditions and
diversities,47[16] understanding these traditions and diversities might provide fresh
insights into the intractable problems of the modernising tendencies. That is why an

45[14]
Rajni Kothari, In India , Orient Longman, Hyderabad 2002.
46[15]
Rajni Kothari, Ibid.
47[16]
Rajiv Dhavan, in the Introduction to Marc Galanter’s “Law and Society in Modern India” Oxford University
Press, 1992.
attempt is made to have an understanding of the ancient paradigm of India’s socio-
political governance and then present the perspective of modernising institutions of
socio-political system.

3. Competing Claims.

There have been lot of confusion, about protective discrimination in post –independent
India. There are competing claims and demands from equally competing equalities,
emotions run high, and the entire socio-political system appears to be divided into two,
pro and anti type of opposite camps, nobody listening to the sane advice from the other
side. Those favouring the preferential policies would give an array of beneficial effects
such as that preferential policies provide a direct flow of valuable resources to the
historically deprived ones in larger measure than they would otherwise enjoy; that
compensatory policies provide for participation in decision making by those who
effectively represent the interest of that section of the population which would otherwise
be unrepresented or neglected ; 48[17] that, by affording opportunities for participation and
well being, preferences promote feelings of belongingness and loyalty among the
beneficiaries, thereby promoting the social and political integration of these groups into
Indian society; that preference induce in others an awareness that the beneficiary
groups are participants in Indian life whose interests and views have been taken into
account and adjusted to; that preferences permit forms of action that promote pride, self
respect, sense of achievement and personal efficacy that enable the beneficiaries to
contribute to national development as willing partners; that by broadening opportunities,
preferences stimulate the acquisition of skill and resources needed to compete
successfully in open competition, that by cultivating talents, providing opportunities and
incentives and promoting their awareness and self consciousness, preferences
enhance the capacity of the beneficiary groups to undertake organised collective action;
that by increasing the visibility of the beneficiary groups, promoting their placement in
strategic locations and emphasising the national commitment to remedy their
conditions, preferences serve as a stimulus and catalyst of enlarged efforts for their
uplift and inclusion; that preferences compensate for and help to offset the
accumulated disablement resulting from past deprivations of advantages and
opportunities; that by reducing tangible disparities among groups and directing attention
to mundane rather than ritual development of a secular society and that, preferences

48[17]
Pursuing Equality in the land of Hierarchy : An assessment of India’s Policies of Compensatory discriminatin
for his historically disadvantaged groups, Marc Galanter , In Law and Society in Modern India, Oxford University
Press, 1992.
contribute to national development by providing incentives, opportunities and
resources to utilise neglected talent. 49[18]

The other side does not have dearth of arguments too, they would argue that the
resources are enjoyed by a small group of the intended beneficiaries and do not benefit
the groups as a whole ; 50[19] that by creating new interests which diverge from those of
the beneficiaries, preferences obstruct accurate representation of their interests; that by
emphasising the separateness of these groups, preferences reduce their opportunities
for common participation; that preferences frustrate others by what they consider unfair
favouritism and educate them to regard the beneficiaries as separate elements who
enjoy their own facilities and have no claim on general public facilities; that preferences
subject these groups to manipulation by others, aggravate their dependency and
undermine their sense of dignity, pride, self sufficiency and personal efficacy; 51[20]that
preferences provide artificial protection which blunts the development and skills and
resources needed to succeed without them; that by making them dependent, blunting
the development of talent, undermining self respect, preferences lessen the capacity for
organised effort on their own behalf; that by projecting an image of comprehensive
governmental protection and preferment, preferences stir the resentment of others, 52[21]
allaying their concern and undermining initiative for measures on behalf of the
beneficiary groups; that these arrangements created vested interests in their
continuation, while discouraging the development of skills, resources and attitudes that
would enable the beneficiaries to prosper without special treatment; that preferences
place an unfair handicap on individuals who are deprived of opportunities they deserve
on merit; that by recognising and stimulating group identity, preferences perpetuate
invidious distinctions,53[22] thereby undermining secularism and that preferences impede
development by misallocation of resources lowering of morale and incentive and waste
of talent.

4. American Paradigm.

49[18]
Marc Galanter, op cit f.n. 12.
50[19]
According a survey conducted by Bar Council of India, 90 percent of the compensatory policies benefits are
cornered by 3 percent of the elite among the backwards, See Bar Council of India Review, Vol XVII, 3 and 4, 1991,
distributors Universal Book Traders New Delhi, 1991.
51[20]
See Ajit Singh v. State of Punjab, AIR 1999, SC 75.
52[21]
See Sukhdev Khanna, Reservations and its implications, Jain Law Agency, New Delhi, 1994.
53[22]
Marc Galanter, ibid, note 11.
Indian Judicial system which has sought to intervene and provide answers to this entire
range of questions has looked for guidance on affirmative action policies all over the
world specifically towards United States of America where similar kind of affirmative
action policeis have been experimented and tested. 54[23] 14th amendment of U. S.
Constitution provides that “All persons born or naturalised in U.S. and subject to the
jurisdiction thereof are citizens of U.S. and the states where in they reside. 55[24] No state
shall make or enforce any law which shall abridge the privilege and immunities of
citizens of U.S. nor shall any state deprive any person of life; liberty or property without
due process of laws nor deny to any person within its jurisdiction the equal protection of
laws. The guarantee under this amendment is aimed at removal of undue favour and
individual or class privileges on the one hand and the hostile discrimination , oppression
or inequality on the other.56[25]

Despite the existence of equal protection clause under 14 th amendment racial

discrimination had continued in the U.S. up to mid 20 th century. However this
discrepancy between its ideals and its treatment of Black people began to be corrected
around 1950s and most notably in 1954. United States Supreme Court came strongly
against the segregation of blacks in schools. The first step as reflected in the decisions
of the Courts and Civil Rights laws of the Congress; merely removed the legal and quasi
legal forms of racial discrimination. These actions while not producing true equality or
even of opportunity socially dictated the next step; positive use of governmental power
to create possibility of real equality. The decision in Brown 57[26] overturning Plessey
(equal but separate doctrine) foretold that all publicly enforced sponsored or supported
racial discrimination was beyond the pale, that equal protection was not a bounty but
was their Birthright.

A decade after Brown, Congress joined the movement to eliminate segregation by

enacting Civil Rights Act in 1964, which prohibited in general terms discrimination
against any person on the grounds of race colour or ethnic origin concerning any
programme or activity receiving Federal Funds. These attempts have been viewed as

54[23]
Oliver Brown v. Board of Education, 347 US 483., Spotts Wood Thomas Bolling v. C.Melvin Sharp, 347 US
497 . Marco Defunis v. charles Odegaard 416 US 312, and Regents of University of California v. Allan Bakke, 438
US 265.
55[24]
Mason and Beany,American Constitutional Law, Prentice Hall Inc Englewood Cliffs, New Jeresy, 1978.
56[25]
Barnard Schwartz, American Constitutional Law, 1976.
57[26]
Oliver Brow et al v. Boad of Education of Topika, et al, 347 US 483, 98 Law Edition 873.
mandating affirmative action programmes using racial classification. The decision of the
United States Supreme Court in Allan Bakke and the debates that took place in its wake
have further re-inforced the constitutionality of the Affirmative Action Programme in U.S.

It may be worth noting that in view of article 15 (4) and 16 (4) in Indian Constitution, the
Bakke type decision and the debate that took place in its wake is not that legally
relevant for Indian jurists, judges and policy makers as the group or community oriented
concept of equality is in harmony with the Indian Constitution and culture, however the
heated debates , judicial pronouncements and academic and philosophical discussions
in the United States are referred to and indeed they are helpful in understanding many
a complex and complicated issues of India’s protective action programme, which is far
more difficult to handle in view of India’s varied and many hued culture. Reference may
be made to Justice Krishna Iyer’s pronouncements in Thomas decision 58[27] that
repairing the handicaps of the blacks in America was comparable to the problems of
repairing the handicaps of the Harijans in India. Similarly justice Iyer referred to
Schlesinger v. Ballard Case59[28] as illustrative of the high judicial bunch in understanding
the classificatory clue to promotion of employment of equality. In fact the U.S. Supreme
Court upheld a classification in favour of a female Naval Officer by applying rational
basis test in this case, which was much like the reasonable basis classification being
employed by the Indian Supreme Court right since the Gopalan and Champakam
Dorairajan cases.

A rider may be added here, lest the context be forgotten, that though the affirmative
action programmes for the historical injustices in India is roughly comparable with the
remedial measures being adopted in U.S. for the blacks and Negroes, but the context
of “ historical injustices” is absolutely different in India from that of United States of
America and the plight of Blacks is different in many respects from the plight of
Schedule castes and Schedule tribes in India. This particular issue shall be taken up in
chapter III in a bit elaborate manner, suffice is to say here that the dynamic of
civilizational context is absolutely different in Indian Context from that of America.

A word about French Constitutional scheme of protective discrimination would not be

out of place here. French equivalent of affirmative action programme in United States or

58[27]
State of Kerala v. N.M.Thomas, AIR 1976 SC 490.
59[28]
419 US 351 (1974)
in India is the concept of Fraternity , which is directed towards helping the poor and the
disadvantaged members of society. The declaration of 1793 in article 21 states that
public assistance is a sacred debt. Society owed its existence to those who are unable
to work. Girondin proposal for rights contained the statement that equality consists in
everyone being able to enjoy the same rights. Though the system of equality that has
been followed in the fifth Republic has served the French mentality so well, peculiar and
contradictory as it is, however the kind of place equality enjoys in the American and
Indian system is unlikely to be achieved in French system, either in socio-political
debates or constitutional litigation in Conseil Constitutionnel.

5. Scheme of The Study.

The present study aims at looking at three systems, India, United States of America and
France, as to how do they work upon the affirmative action programmes, which
evidently are the compensatory measures for historical deprivations and come out with
some comparative conclusions of the similarities and differences amongst them. It must
however be noted that Affirmative Action Programme(as they are called in U.S.) or the
Protective Discrimination Programmes (as they are called in India) are some of the
schemes of preferences, whose success does not depend merely upon the existence of
provisions of preferences, rahter their success depends upon the careful planning ,
designing and provision for sufficient resources, general acceptability of such schemes
both by the recepients and those excluded and above all upon the capability and
political will to make the schemes work with minimum tensions and resentments. 60[29]
How do various systems really design and plan their resources would be an interesting
point and one of the main foci of this study.

It may also be noted in this context that the affirmative action programmes are only
one of the means of promoting equality for the oppressed and underprivileged sections
of society. It has been noted above that equality is not the fact of life. Nature has not
willed that all men should be equal . Men differ obviously and profoundly in almost every
respect. They are as G.D.H. Cole put it, “Radically unlike in strength and physical
powers, in mental ability and creative equality, in both the capacity and willingness to
serve the community and perhaps most radically of all in power of imagination. 61[30]

60[29]
Parmananda Singh, Equality, Reservation and Discrimination in India, Deep and Deep Publications 1985.
61[30]
A Guide to modern Politics.
Nature has not created all men equal. Absolute equality or what some would call it
natural equality is an impossible ideal . Nature has itself created such vital differences
between men that no power can make and keep them equal. No one with the eyes in
his head can or will deny the existence of these human differences.Inequality is an
inescapable natural fact and it has to be accepted by society. Nature has endowed men
with different with different capacities in satisfying them, equality in its popular sense is
inconceivable. Equality does not in any case imply identity of reward for efforts.
Therefore saying that men are born equal and always continue to be so, is an
erroneous a statement as saying that the surface of the earth is level. 62[31]

In such a situation picking up this or that group for compensatory discrimination itself is
a difficult task. The quest for identifying the relevant criterion for differantiation have
occupied philosophers for centuries . Starting from Plato and Aristotle to Hart and
Dworkin, philosophers have sought to provide justificatory arguments for classifying
people or a section of population for special treatment. Are these justifications in
consonance with the principles of justice and equality ? Or do they suffer from some
limitations ? Whether these justifications have universal applications ? or do they suit
the needs of certain politico-legal system alone ? Would be some of the questions to
be explored in this work.

With this purpose and perspective in mind the second chapter, following this
introductory chapter, shall attempt a theoritical insight into the concept of equality
justice and affirmative action programme, better known as Reservation system in India.
Chapter III shall present the panoramic view of Ancient India’s socio-political
governance and how the concepts of equality, justice and affirmative action
programmes or protective discrimination have been viewed in India. As has been
indicated above , this chapter shall also cover the present model of socio-political
governance under Indian constitution reflecting on the concept of equality and justice.
Chapter IV shall have a brief overview of the equality and affirmative action programme
of United States of America, and France. And chapter V shall attempt to present a
comparative evaluation of Indian, and American preferential treatment of historically
disadvantaged sections of population.

62[31]
Harold J.Laski, A Grammar of Politics.
XXXXXXXXXXX
 CHAPTER- II

Equality, Justice and Affirmative Action :

Theoritical considerations.

1. Nature of Equality.

The expression “Equality” is incapable of a single definition, as it is a notion of many

shades and connotations and has been viewed by Philosophers from many different
angles. There is a variety of ways to express the idea of equality and different writers
tend to emphasize some forms of equality, rather others, as of overriding importance-
equality before law, equality of basic human rights, economic equality or equality of
consideration for all persons or equality of opportunity. 63[32] There are those who while
being indifferent to or even dismissive of one aspect of equality are deeply committed to
another aspect of it. For example most schools of thought in fact cater to the view that
complete equality would be difficult to come by. But while there are some that argue
that an egalitarian distribution is inimical to freedom and development there are some
that insist on precisely the opposite, viz, that an egalitarian distribution is a necessary
pre-requisite to any meaningful freedom and development. 64[33]
63[32]
Alexis De Toqueville said that men have greater passions than for liberty. J. S. Mill realized the importance of
encouraging the widest possible diversities of mind and taste. He argued that the best state for human nature is that
in which while no one is poor,,no one desires to be rich. Although he urged that social policy be directed to suppress
to increasing equality, he never intended to convey the idea that it should suppress varieties of individual character
and genius. But it is only in a society marked by large measure of economic equality that such varieties were likely
to find their expression and due need of appreciation. It is a paradox that the more anxiously a society endeavours to
secure equality of consideration for all its members the greater will be the differentiation of treatment.
64[33]
Pulin B Nayak, “On Equality and Distributive Justice” Economic and Political Weekly, Annual Number March
1991.
It is no doubt frequently asserted that all men are born equal, but there is no unanimity
as regards the common attributes which makes them equal. 65[34] According to Bernard
Williams, “the idea of Equality is used both in a statement of fact or what purport to be a
statement of fact- that men are equal, and in a statement of political principles, or aims
that men should be equal,66[35] as at present they are not. It is in this later sense that the
notion of equality belongs to the sphere of values. It is in moral judgements to the effect
that equality is a good, that it ought in some cases to exist, and that this is so in spite of
the obvious ways in which men are unequal in strength, talent and intellect. Nor have
most philosophers wanted an equality which is total. The claim that men are equal is a
claim that in fundamental respects, regardless of obvious differences between one man
and another, all men deserve to be given certain kinds of treatment. They have a right to
certain kinds of equal treatment in crucial aspects of their lives, though not in all. 67[36]

Indeed there are few words that admit of such wide meanings and interpretations as
that of equality. Economists usually focus on the notion of equality of income, wealth or
some measure of individual well being, such as utility. However Walzer (1973) has
emphasized, at a wider level one may legitimately be concerned with the notion of
equality involving not just wealth and power, but honour, work, education and free
time68[37]. All of these refer to what we might call equality, or inequality, of individual
circumstances. But at the level of societal arrangements, there are important notions of
equality of opportunity, equality before law and equality of treatment, to name a few of
the commonly examined concepts.

Rashdall advances the principle, that every human being is of equal intrinsic value and
is, therefore, entitled to equal respects as an exact expression of the Christian ideal of
brotherhood. He, however, points out that the principle does not require that every
person be given an equal share of wealth or of political power but rather equal
consideration in the distribution of ultimate good. 69[38] He takes it to be self-evident, to be
an analytical judgment, to say that what is recognized as being of value in one person
must be recognized as being of same value in another, provided it is really the same
65[34]
Dallmayer, Functionalism, Justice and Equality, (1967), 78 Ethics 10.
66[35]
The Idea of Equality, Bernard Williams, In a “ Companion to Contemporary Political Philosophy” Edited by
Robert Goodin and Philip Petit, Blackwell, Oxford 1995.
67[36]
Democracy, Equality and Freedom, Edited by Upendra Baxi, Oxford University Press, New Delhi 1993.
68[37]
Complex Equality, By Michael Walzer, in “A companion to Contemporary Political Philosophy” edited by
Robert Goodin and Philip Petit, Blackwell, Oxford, 1995
69[38]
Rashdall Hastings, The Theory of Good and Evil, (1907) Vol I, 223-224.
thing that is implied in the assertion that it has value. Such axioms, he agrees, cannot of
themselves solve practical moral problems. They are purely formal but they do offer
guidelines on how to distribute the good once its nature is known. What is implied by the
principle of equal respect for all persons is impartiality in the treatment of all men; it
rules out inequality, or rather, arbitrary inequality, inequality not justified by the
requirements of social well being, or some other general and rational principle in the
treatment of individuals. No man he asserts, has a right to anything unconditionally
except the right to be equally considered. The rights of man are all ultimately resolvable
into the one supreme and unconditional right –the right to consideration. 70[39]

This meaning of of equality was clearly identified by Immanuel Kant in “Fundamentals

of Principles of the Metaphysics of Morals”, when he distinguished the possession of
value from the possession of dignity. Whatever has a value can be replaced by
something else which is equivalent in value; whatever, on the other hand, is above all
value, and, therefore, admits of no equivalent, has a dignity. So, commodities that
satisfy human wants and needs have a market value. What appeals to human taste,
even in the absence of need, may be said to have emotional or imaginative value. But
some things in the world cannot be measured on any scale of values. They are
invaluable, priceless, and that is the case with every human being. One may be better
cook than another or a better student or legislator, and in the restricted sphere of
conduct we may and often must appraise their relative merit. But as men they do not
have relative merit, for what has relative merit may, in so far as it has that merit, be
replaced by another like entity with equal or greater merit. A good cook may be replaced
by a better cook; a good legislator by one at least equal in talent for legislation. But as a
person, no human being can possibly be replaced by another. What entitles him to a
place in this sphere is simply his having human dignity; it is a quality intrinsic to his
being. This very thought is expressed in the now commonplace remark that the dignity
of every human being must be respected. Dignity here connotes not pride or manner,
but the intrinsic worthiness or every human being, without regard to his intelligence,
skills, talents, rank, property or beliefs. He who affirms the principle of human dignity in
this sense respects equality.71[40]

Analysing Rawls’ theory of Justice, Dworkin reaches the same conclusion, that “justice
as fariness rests on the assumption of a natural right of all men and women to equality

70[39]
Ibid, page-147-148.
71[40]
See Bernard Williams, AO, “the Idea of Equality” in “A Companion of contemporary Political Philosophy, op
cit f.n.6.
of concern and respect, a right they possess not by virtue of birth or characteristic or
merit or excellence but simply as human beings with the capacity to make plans and
give justice. He goes on to say that “ Rawls’ most basic assumption is not that men
have a right to certain liberties that Locke or Mill thought important, but that they have a
right to equal respect and concern in the design of political institutions. Thus according
to Dworkin, Right to equal concern and respect is the most fundamental right of all the
rights. This right according to Rawls is owed to human beings as moral persons, and
follows from the moral personality that disntinguishes humans from animals. Thus
human beings already possessed this right when they agreed on the two principles of
justice enunciated by Rawls. This right is more abstract than the standard conceptions
of equality that distinguish different political theories . It permits arguments that this
more basic right requires one or another of these conceptions as a derivative right or
goal.72[41]

Looking at the concept of Equality from a common man’s point of view, the principle of
equality was originally, a common man’s protest against the gross inequalities created
by the superior claims of the nobility in ancient societies. The idea of equality has,
therefore grown out of the idea of privileges. 73[42] These inequalities and privileges
persists even in our own times. Inequality, as such, refers to the conditions created in
society by a limited number of privileged people, who have always dominated the State
and used its power for their own purpose. 74[43] This class of vested interests makes the
fulfilment of their private desires the criterion of the public good. Equality means, first of
all, that special privileges of all kinds should be abolished. All barriers of birth, wealth,
sex, caste, creed and colour should be removed so that no one suffers from any kind of
social or political disability.

There should be, in short, no difference between man and man and whatever rights
inhere in another by virtue of his being a citizen must inhere and to the same extent in
me as well. It means that I am entitled to the enjoyment of all those social and political
privileges to which others are entitled. My vote in the election of the representatives is
as valuable and potential as that of any other. I can also become the recipient of any
office of the State for which I may be eligible. 75[44] To refuse any man access to authority
is a complete denial of his freedom, because, unless I enjoy the same access to power
72[41]
Reservation Crisis in India, Bar Council of India Trust, Universal Book Traders, New Delhi, 1991. Also see
Taking Rights Seriously by Ronald Dworkin, Harvard University Press, 1997.
73[42]
A.C. Kapoor, Principles of Political Science, S Chand and Company, New Delhi, 1984.
74[43]
Ibid.
75[44]
Harold Laski, A Grammar of Politics.
as others, I live in am atmosphere of contingent frustration. One who lives in an
atmosphere of frustration has neither any inspiration in life nor any incentive for it. He
accepts his place in society. He accepts his place in society, which accident of birth has
given him, as a permanent condition of his life. It is in this way that the faculty of
creativeness is lost and men or a class of men become “animate tools” which Aristotle
described as the characteristic of the natural slave. There can be no equality in a
society where a few are masters and rest are slaves. The principles of equality,
accordingly, means that whatever conditions are guaranteed to me, in the form of rights,
shall also in the same measure, be guaranteed to others and that whatever rights are
given to others shall also be given to me. The chief characteristic of a right is its
equalitarian basis.

1. Theories of Equality.

In this section we shall have a brief look as to how various political ideologies theorise
the concept of equality to show that though the thinkers of all hues look at it from
different perspectives, but there is surprising unanimity in their line of thinking and
almost all of them come to some common conclusions ending up in talking, in terms of
justice to all individuals and groups, though they will have different perspectives in their
conceptions of justice. It is this element of justice that leads to the adoption of policies
on affirmative action programmes. Demands of justice compels the state system to
resort to the protective discrimination kind of policies and that precisely forms the
jurisprudential basis of benign discrimination. But before we talk of the common
conclusions and common concerns amongst philosophers of various hues, let’s have a
look at their viewpoints about equality. We shall cover, liberals, libertarians, Fabians and
Marxists.

1.1 Liberal Theory of Equality : John Rawls.

Strictly speaking, there is nothing like a liberal theory of Equality. However, since
liberalism has been a very amorphous concept, dynamic and changeable, implying
almost a compelling passion for liberty, representing a system of ideas, that aim at the
realisation of pluralists society and diversity in politics, economics religion and cultural
life, it would not be far of the mark to say that John Rawls represents that face of
liberalism which vies for realization of equality of all individuals emphasizing on the
care of the least privileged.. Though we find an espousal for equality of all in Locke,
Bentham, Mill and Greene, however in modern times the most forceful argument has
been developed by John Rawls in his seminal work, “A theory of Justice”. 76[45] Rawls
argues that the principles of justice are those that would be chosen by free and rational
individuals if they had to choose behind a veil of ignorance as to what position in
society, they might themselves occupy. Rawls makes a persuasive case for a
conception of justice that would improve the chances of the least advantaged members
of society. In other words inequality is only justified if it results in the poor being better
off in the social dispensation. Rawls calls this “the difference principle”. Since the
Rawlsian prescription is geared exclusively towards improving the lot of the worst off
members of society, the rule would obviously be more egalitarian than the Utilitarian
principle. More specifically, on the question of bringing about greater equalities. 77[46]

Rawls has identified what he had called primary social goods. There are things that
every rational man is presumed to want including rights and liberties, opportunities,
powers, income and wealth, and the basis of self respect. For Rawls basic liberties
have priorities over other primary goods and each person is to have an equal right to
the most extensive basic liberties compatible with a similar liberties for others. Having
ensured basic liberties, Rawls is for ensuring an equitable distribution of primary goods .
According to him, primary goods are the ncessary means, whatever may be one’s
system of ends. He observes; “Greater intelligence, wealth and opportunity for example,
allow a person to achieve ends he could not rationally comtemplate otherwise. 78[47] He
then goes on to propose an index of primary social goods, though he concedes that the
attempt would face several difficulties.

Rawls is very clear in his approach that undeserved inequalities call for redress and
since inequalities of birth and natural endowment are undeserved, these inequalities
are to be somehow compensated for. 79[48] The difference principle holds that in order to
treat all persons equally, society must give more attention to those with fewer native
assets and those born into the less favourable social positions. The idea is to redress
the bias in the direction of equality, maintains Rawls.
76[45]
Oxford University Press, 1972.
77[46]
Pulin B Nayak “On Equality and Distributive Justice”, Economic and Political Weekly, Annual Number, March
1991.
78[47]
A Theory of Justice, John Rawls, Oxford University Press, 1972.
79[48]
A Theory of Justice,P.100.
It must be noted that Rawls thinks of primary social goods as embodying one of the
two conceptions of equality, and there is another, more fundamental one. Rawls writes;
“some writers have distinguished between equality as it is invoked in connection with
the distribution of certain goods, some of which will almost certainly give higher status
or prestige to those who are more favoured and equally as it applies to the respect
which is owed to persons irrespective of their social position. Equality of the first kind is
defined by the second principle of justice (difference principle) which regulates the
structure of organisations and distributive shares so that social cooperation is both
efficient and fair. But equality of the second kind is fundamental”. 80[49]The later is defined
by the principle of justice whereby each person is to have an equal right to the most
basic liberty compatible with a similar liberty for others. Rawls further emphasises that
the natural basis of equality explains its deeper significance and it is defined by such
natural duties as that of mutual respect, which is owed to human beings as moral
persons.

The two conceptions of equality proposed by Rawls together make a case for the
elimination of substantial inequalities, but they would not lead to elimination of all
inequalities. Indeed the difference principle admits of inequalities to the extent that the
well being of the worst off member can be ensured to be maximised.

Amartya Sen in a incisive piece, “Equality of what” 81[50]criticises Rawls , on the ground
that the notion of Primary goods, is “Fetishist”. “Rawls takes primary goods as the
embodiment of advantages, rather than taking advantages to be a relationship between
persons and goods.” Utilitarianism or more particularly welfarism does not have this
fetishism, since utilities are reflections of one type of relation between persons and
goods. For example, income and wealth are not valued under utilitarianism as physical
units, but in terms of their capacity to create human happiness or to satisfy human
desires. Even if utility is not thought to be the right focus for the person-goods
relationship, to have an entirely goods oriented framework provides a peculiar way of
judging advantages.

80[49]
Ibid, p/511.
81[50]
A Companion to Contemporary Political Philosophy, op cit f.n. 6.
Futher, Sen emphasises that the primary goods approach seems to take little note of
the diversity of human beings.82[51] In the context of assessing utilitarian equality, it was
argued that if people were fundamentally similar in terms of utility functions, then the
utitlitarian concerns with maximising the sum total of utilities would push us
simultaneously also in the direction of equality of utility levels. Thus utilitarianism could
be rendered vastly more attractive if people really were similar. A corresponding remark
can be made about the Rawlsian difference principle. If people were basically very
similar then an index of primary goods might be quite a good way of judging advantage.
But, in fact, people seem to have very different needs varying with health, longevity,
climatic conditions, location, work conditions, temperament and even body size
(affecting food and clothing requirements). So what is involved is not merely ignoring a
few hard cases, but overlooking very widespread and real differences. Judging
advantage purely in terms of primary goods leads to partially blind morality.

1.2. Libertarian Perspective.

Libertarian perspective on equality has been articulated in the most forceful manner by
F.A.Hayek,83[52] Friedman, 84[53]Nozick 85[54]and Letwin86[55] amongst others. F.A.Hayek, in
his substantial work “the constitution of liberty” emphatically states, that as a statement
of fact it is just not true that all men are born equal. We may continue to use this
hallowed phrase to express the ideal that legally and morally all men ought to be treated
alike. But if we want to understand what this ideal of equality can or should mean, the
first requirements is that we free ourselves from the belief in factual equality. From this
he went on to argue that if we treat equally, all individuals, who are unequal, the result
must be inequality in their actual position. 87[56] Therefore the only way to place them in
an equal position would be to treat them differently. Hayek therefore goes on to
conclude that equality before the law and material equality amongst individuals are in
necessary conflict with each other, and we can achieve either the one or the other, but
not both at the same time. Since equality before the law is regarded as a necessary
prerequisite of a free society, this would automatically result in material inequality.

82[51]
Ibid.
83[52]
constitution of Liberty , Routeledge and Kegan Paul, London, (1960)
84[53]
Capitalism and Freeom, Milton Friedman, Chicago University Press, (1960)
85[54]
Anarchy State and Utopia by R.Nozick, Basil Blackwell, Oxford (1974)
86[55]
Against Equality, Mc Millan London (1983)
87[56]
Constitution of Liberty, (1960) p. 87.
Hayek further argues that the boundless variety of human nature, the wide range of
differences, in individual capacities and potentialities is one of the most distinctive facts
about the human species. Its evolution has made it probably the most variable amongst
all kinds of creatures. I has been well said that biology, with variability as its
cornerstone, confers on every human individual a unique set of attributes which give
him a dignity he could not otherwise possess. All this goes on to suggest that the quest
for perfect equality in individual circumstances is bound to prove fruitless.

It is one thing to acknowledge that in-equality is a consequences of the natural order,

but it is quite another to make a case for non intervention. Hayek declares that a
demand for equality is the professed motive of most of those who desire to impose upon
society a preconceived pattern of distribution. Our objection is against all attempts to
impress upon society a deliberately chosen pattern of distribution, whether it be an
order of equality or of inequality. Essentially the same kind of view is held by other
libertarians, such as Friedman, Nozick and Letwin.

Letwin for example argues that any egalitarian policy would necessarily be internally
contradictory.88[57] That is, if a government were to equalise any one material dimension
of life, such as income, wealth, consumption, or work effort, it would necessarily and
inevitably create inequality in one or more of he other dimensions. Suppose for example
government sets out to equalise pay by assuring each worker the same wage rate per
hour of work done. This would imply that if workers were allowed freedom to choose the
number of hours of work per annum, then some would earn more than others per
annum. Suppose on the other hand that the government decrees to pay the same
amount to each worker annually and if different workers worked different number of
hours per year, because of ill health, work stoppage, or whatever reason, then their
hourly wages would be unequal . Further, if they worked different number of years
during their lives, owing to differences in health, opportunity, or other objective
conditions, then their lifetime incomes would be unequal. Thus any rule imposing
equality on pay per hour, year of life would necessarily impose inequality on pay
realised during any other interval of time.

And this is not all. Suppose that each worker were paid the same annual wage. This will
not tell us anything about the persons, expenditure, savings and investment etc. With
88[57]
Against Equality,By William Letwin (1983) Mc Millan London.
different saving propensities, equal annual pay may even within one lifetime produce
remarkable inequality of wealth. Further if inheritance is permitted then inequality of
wealth and income may considerably intensify over time. Most importantly, individuals
would in general, respond in different ways to perform risky activities than would involve
greater disutility. If individuals were forced to perform these activities, in a regime of
uniform pay, then this would , in general entail differences in individual well being. Thus
if a government were to ensure equality with respect to some variable then individuals
will in fact end up differences with regard to some other variable or variables.

While it is not necessary to over-emphasise the point that complete equality is

impossible to achieve, it is worth noting that libertarians usually take the position that it
is undesirable. The argument is that an equal world is inimical to growth and
incentives89[58]. Hayek writes, “The rapid economic growth that we have come to expect
seems in a large measure to be a result of this inequality and to be impossible without it.
Progress at such a fast rate cannot proceed on a uniform front but must take place in
echelon fashion, with some far ahead of the rest.” 90[59] After all, knowledge is a vital part
of the process of progress and knowledge and its benefits can spread only gradually
and the ambitions of the many will always be determined by what is as yet accessible
only to the few. In a similar context, Hayek contends that new things often become
available to the greater part of the people only because for some time they have been
the luxuries of the few.

It may however be noted that the libertarian thinkers such as Hayek and Friedman who
had recognised the difficulty of ensuring equality of individual circumstance have
invariably at the same time argued for the elimination of moral or political inequality.
Most of the relevant discussion of this issue has therefore centred on equality of
opportunity and equality before the law, among other related notions. It is presumed
that each of these notions of equality goes towards enhancing individual freedom. The
principle of equality of opportunity ensures that every person has an equal chance to
do what he or she wishes and has the capacity for. There is a fundamental presumption
here that inequalities must be tolerated if they result from differences of personal effort
and merit and not as the result of different opportunities. This is to be contrasted with
the notion of equality of outcome, or equality of results which would require action by
the state to correct free market outcomes. Harry Jhonsom ( 1975) has observed, “to be
consistent with both the principle of individual freedom and personal responsibility and

89[58]
P.B.Nayak, On Equality and Distributive Justice, op cit f.n. 2.
90[59]
F.A.Hayek, constitution of Liberty, p.42.
the requirements of efficient economic organisation, policy should concentrate on
providing equality of opportunity rather than equality of measured income ex post
results.

Equality before law is equally important and necessary requirement for libertarian
thinkers. The problem, however is that that in order to ensure any meaningful
application of the above two principles, one must ensure a substantial measure of
equality in individual circumstance, particularly economic equality. It does not need to be
overstressed that a rich man has a great advantage over a poor man when he is
involved in the courts of law. Since one cannot ensure complete equality in individual
circumstances one would have to conclude that equality in societal rules, viz, equality of
opportunity and equality before the law can only be strictly valid as a slogan.

1.3. Marxian Radicalism.

It is a matter of considerable interest and importance that Marx was clear in his
recognition of the impossibility of ensuring complete equality in individual
circumstances. But he was not merely questioning the practicability of this goal of
equality; he was in fact not even willing to acknowledge this as an ideal worth striving
for. Since Marx was fundamentally against oppression in any form one would have
expected him to argue for an egalitarian world. But in fact there are no explicit
espousals of the notion of equality in Marx’s writings. In the writings of both Marx and
Engels there are statements to the effect that equality is fundamentally a bourgeois
idea, having no place in the statement of working class demands or objectives. It is for
this reason that Heller (1988) has observed that “Egalitarianism has no bitterer enemy
than Marx himself”91[60].

Marx presupposes a society wherein “ the instrument of labour are common property
and the total labour is cooperatively regulated, and where the proceeds of labour belong
undiminished with equal right to all members of society. Marx does not conceal his
preference for the notion of the abolition of all class distinctions as being the more

91[60]
Agnes Heller, Labour and Human Needs in a society fo Associated Producers in Tom Bottomore (ed)
Interpretation of Marx, Basil Blackwell, Oxford 1988.
relevant notion as compared to the objective of the elimination of all social and political
inequality.

According to Marx, in the first phase of the communist system, “the right of the
producers is proportional to the labour they supply, the equality consists in the fact that
measurement is made with an equal standard labour. Yet because one man is superior
to another physically or mentally and so supplies more labour at the same time, or can
labour for a longer time, this “equal right is an unequal right for inequal labour.” 92[61] Thus
distribution in the first phase of communism will inevitably be an unequal distribution,
and will be so precisely because it is a distribution according to equal right. He goes on
to say, one worker is married, another not; one has more children than another and so
on and so forth. Thus, with an equal performance of labour, and hence an equal share
in the social consumption fund, one will in fact receive more than another , one will be
richer than another, and so on. To avoid all these defects, right instead of being equal
would have to be unequal.93[62]

After the first phase of communist society is over the principle of equal right to labour
would give place to a system where labour not only becomes a source of livelihood but
life’s principal need. Marx goes on to say, “in a higher phase of communist society, after
the enslaving subordination of the individual to the division of labour, and therewith also
the antithesis between mental and physical labour, has vanished; after labour has
become not only a means of life but life’s prime want; after the productive forces have
also increased with the all round development of the individual and all the springs of
cooperative wealth flow more abundantly- only then can the narrow horizon of
bourgeois right be crossed in its entirety and society inscribes on its banners: “from
each according to his ability to each according to his needs.” 94[63] Marx conceptualises
the higher phase of communist society as a world of plenty where each person is
allowed to consume as per his needs and contribute to the national cake to the best of
his ability or capability. According to him even the higher phase of communist society is
not a world that is characterised by equality in individual circumstances. In fact
precisely the opposite is the case. Human beings are regarded as unique and separate
individuals and an environment is provided where each person gives of his best and is
allowed to partake of the social cake to the extent of his needs. All the means of
production are socially owned and the question of distribution in the sense of private
92[61]
Karl Marx “Critque of Gotha Programme, in selected works by Karl marx and F Engels, Progress Publishers,
Moscow 1975.
93[62]
Ibid.
94[63]
Ibid.
appropriation of income or wealth amongst individuals simply does not arise. Thus
equality of status is established by doing away with the notion of private ownership of
holdings altogether.

Thus it would be seen that while Marx is indifferent to the elimination of all social and
political inequality, he is for abolition of class distinctions, which for him is of
fundamental importance. It is when the class distinctions are eliminated that social and
political inequality arising from them would disappear of itself. Thus while Marx was not
interested in pursuing the goal of equality in individual circumstance he was at the same
time careful to emphasise the importance of equality in the sense of eliminating all class
distinctions. He says that with the abolition of classes in socialist society all social and
political inequality arising from them would disappear. Implicit in this idea is his belief
that even though the rewards of the producers are not going to be exactly equal, income
differentials are not likely to be great because society will fulfill such social needs as
education and health care and the education from the social product, for these needs
grow considerably in comparison with present day society and it grows in proportion as
the new society develops.

1.4. Various strands of Socialist thinkers : Fabians and Social Democrats.

It is bit interesting to note that the way the concept of equality has developed and come
to be understood in the democratic world today, the socialist thinkers and writers of
the past century and a half are among the strongest proponents of equality . Marxists
have always taken a drastic redistribution for granted. The socialist thinkers though less
radical in their approach, have advocated the redistribution of income and wealth by
one device or another. This has been for them the central issue of public policy and to
avoid this was to avoid all issues. 95[64] It may not be possible or even appropriate to
touch on the views on equality in diverse strands of socialist writings in view of the
relevance of the topic. Therefore we shall have a brief look on the views of the Fabians
, and social democrats.

95[64]
P.B.Nayak, op cit f.n. 6.
These were a small groups of intellectuals, inheritors of the philosophical traditions of
Bentham and Mill. They were active and resourceful paphleteers and wrote on all
manner of social, political and economic issues. They shared a common conviction of
the necessity of the state to intervene to take charge of the commanding heights of the
economy and to actively participate in the provision of education, health and other merit
goods. The original Fabian thinkers like Webb and Shaw, all shared Marx’s moral
outrage at the evils of capitalism, particularly as a system that engenders abject poverty,
inhuman working conditions, and stark inequalities of income, wealth and social status.
They were all convinced that the institution of private property was the principal, if not
the sole cause of the malaise, yet paradoxically, most of them were not straight enemies
of the established order and in fact were uncomfortable with the Marxian language of
class war and revolutions. Most of them did not share Marx’s belief that capitalism must
inevitably collapse though they were careful to acknowledge that the system is prone to
periodic slumps. They in fact were struck by its spectacular long run growth and saw
no reason to doubt that it would continue to reap the benefits of successive rounds of
technological innovations.

Socialism for most of these thinkers meant nationalisation, municipalisation and

government regulation of industry. Shaw, however, extolled the virtues of individual
freedom and competition, and believed these to be as important as the freedom of
speech or the freedom of the press. By the 1930s they came to accept the necessity of
mixed economy. R.H.Tawney, in his classic work, “Equality” 96[65] made a forceful
presentation of his equalitarian ideology. His concern was with fundamental equalities
before the law, the removal of collectively imposed social and economic inequalities,
and the equalisation of opportunities for all to secure certain basic goods and services.
He emphasised the crucial role of education to make children “capable of freedom and
more capable of fulfilling their personal differences”, 97[66] and make them communicate
with each other at an equal level. He believed that it was the individuality in each person
that ought to be emphasised and encouraged, “without regard to the vulgar
irrelevancies of class and income”. Offering one of the most perceptive critiques of the
British class system, Tawney lamented that the twin pillars of inequality, viz, inherited
wealth and public goods, that stood in the way of ensuring equality of opportunity were
Britain’s hereditary curse, and the source of most of its afflictions. Tawney made a
powerful case for tailoring economic and social organisations to establish institutions to
meet common needs, such as education, which would be a source of common
enlightenment and common enjoyment.

96[65]
R.H.Tawney, Equality, Unwin London (1964)
97[66]
Ibid.
As such a strong case for social justice was made out by Tawney, and this was the
central issue to the hardcore thinking of Fabian and Social democrats. However, they
could not extricate themselves from allowing the primacy of private ownership of the
means of production to continue. This led Schumpeter to argue that they were the kind
of socialists who believed in the productive success of capitalism while they deplored its
distributive consequences.98[67]

2. Common Grounds of Distributive Justice.

The above discussion brings us into a position where we can draw some conclusions.
First of all it is clear from the above that almost all thinkers from liberals to libertarians,
and Marxists to social democrats agree on the point that equality of individual
circumstances is an impossibility. While Rawls makes a substantial case for reducing
inequalities, and his difference principle allows maximum advantage to the worst off
members of consistent with some inequality still remaining. He concedes that if
inequalities benefit everybody by drawing out socially useful talents and energies, then
they would be acceptable to all. Libertarians on the other hand are clear in their minds
that equality in individual circumstances is not even desirable, for it would thwart
incentives and growth. They do talk about equality of opportunity and equality before
law, but equality in the sense commonly understood is clearly undesirable for them. The
argument is that an equal world is inimical to growth and incentives. The rapid
economic advance that we have come to expect seems in a large measure to be a
result of … the unequal circumstances. Marx’s view on equality it turns out, that he is
rather indifferent towards the idea of equality of individual circumstances, in the sense
of equal distribution of commodities and income. He would rather prefer to eliminate the
class distinctions, so that oppression and exploitation may be eliminated and all social
and political inequality arising from them would disappear by itself. In the first phase of
communism he envisages inequality emerging from the equal right to the labour, but in
the final stage of communism he envisaged a world where equality in the sense of
distribution of gods or income would cease to have meaning. Social democrats and the
Fabians are in favour of substantial measure of equality but they are not in favour of
doing away with basic framework of free market capitalism, believing that some form of
inequality is not only desirable for the purpose of long term growth, but also is part of
the natural order of things.
98[67]
J.A.Schumpeter, Capitalism, Socialism and Democracy, Allen and Unwin, London (1976)
Secondly almost all the thinkers make out a case for ensuring justice,(though as has
been noted everybody will have a different conception of justice) and etch out some
kind of an arrangements for redistribution of resources. In Rawlsian scheme of things
the conception of justice ensures that the dispensation is designed in such a way that
improves the least advantaged members of society. In fact Rawlsian justice is geared
exclusively towards improving the lot of worst off members of society. Rawls talks of
ensuring equality of opportunity, because it ensures, that fate of the people is
determined by their choices and not by their circumstances. “My aim is to regulate
inequalities that affect people’s life chances and not the inequalities that arise from the
people’s life choices”, which are individual’s own responsibility. Rawls seeks to ensure
a scheme of things what Prof Dworkin calls “endowment insensitive and ambition
sensitive”99[68] dispensation. A system is just if it takes care for the redressal of
undeserved inequalities and since inequalities of birth are undeserved these inequalities
are somehow to be compensated for.

Libertarian thinkers like Hayek and Friedman have recognised the difficulty of ensuring
equality of individual circumstances, but at the same time they have argued for
elimination of moral and political inequality. They have centred their discussion on
ensuring “Equality of opportunity and equality before law”. The presupposition is that
this ensures justice and enhances individual freedom. The principle of Equality of
Opportunity is that every person has an equal chance to do what he wishes and has the
capacity to do. For Marx, a just system is the one, wherein all class distinctions have
been abolished. It is not necessarily a system where equality prevails for “Equality” is
fundamentally a bourgeois idea, having no place in the statement of working class
demands and objectives. Since State is an instrument, used by dominant class to
suppress and exploit the dependant class, the state in the hands of Proletariate shall be
the medium to be used against the bourgeois and other reactionary and counter
revolutionary forces and affecting a radical redistribution of resources.

Social Democrats are in favour of ensuring a system (A Just one), wherein substantial
measure of equality is guaranteed without doing away with the basic framework of
market capitalism. R.H Tawney 100[69] is in favour of substantial redistribution and in
particular public provision for education, for all children to make them capable of

99[68]
Taking Rights Seriously, Ronald Dworkin, Harvard University Press, 1997
100[69]
“Equality” by R.H.Tawney,Unwin, London (1931).
freedom and more capable of fulfilling their personal differences and enlargement of
personal liberties. Through the discovery by each individual of his own and his
neighbour’s endowment. Amartya Sen emphasises this aspect in his advocacy of “Basic
Capability Equality”. He says that “individual claims are not to be assessed in terms of
the resources or primary goods, persons respectively hold, but in terms of the freedom
they enjoy to choose between different ways of living that they can have reason to
value” Public action to improve nutritional intake, life expectancy and reduce morbidity
and infant mortality so as to enhance individuals capabilities has received froceful
support in the writings of Amartya Sen.101[70]

Under Indian Constitution, what is laid down in terms of equality is a twin concept, i.e.
equality before law and equal protection of laws, while the former ensures equal status
to everybody, from a prince to a pauper, the later concept, is aimed at achieving
substantial equality by classifying the advantaged and disadvantaged and provide the
disadvantaged ones with protective discrimination which has been specifically taken up
in article 15 and 16. This idea of equality under Indian Constitution, thus, emphasizes
on the protective aspect of equality which has been the prime concern of most of the
philosophers we have talked about above.

This discussion brings us to the idea of Distributive Justice. Whatever the differences of
opinions amongst the philosophers of various hues, on the conception of justice and
equality, they would all suggest some or the other kind of distributive mechanism to
shape the society in the mould of their philosophy. In fact the idea of distributive justice
is not something new. Aristotle himself talked about distributive justice. According to him
justice is of two types-complete justice and particular justice. Particular justice, is further
subdivided by him into Distributive justice and Corrective Justice. Distributive Justice
consists in proper allocation of reward to each person according to his worth and
desert. It thus looks beyond equality in purely formal sense. Its central concern is to
redress the bias of contingecies in the direction of equality. In a democratic world it is
taken for granted that policies for the redress of severe social and economic
disadvantages are in themselves desirable. Such policies of distributive justice aim at
different sectors of society and at the widest possible base. Either we call such policies
as protective discrimination, benign discrimination or preferential policies, they are the
means for achieving the ideals of distributive justice. Justifications for affirmative action
lies in the needs either to remove the grossly unjust inequalities in the system or to
raise particular sections of the society to the level of human existence and assure them
101[70]
Justice, Means versus Freedom, Philosophy and Public affairs, 19: 111-21.
their due dignity. It is these justifications for affirmative action, that we now turn to in
the next section.

3. Affirmative Action Programmes : Jurisprudential Basis.

The fact that Constitution of India specifically provides for affirmative action
programmes in an elaborate manner or that the Supreme Court of United States of
America has held “Affirmative action Programmes” Constitutionally sanctioned, has not
put paid to the controversies dogging this issue. In fact the issue raises questions of
great importance to the legal theory and philosophy and as such are required to be
looked into a bit more fully and systematically. It has been seen in the introduction that
the policies of compensatory discrimination raise a host of questions and arguments.
Here an attempt shall be be made to look into some of the more important questions
and arguments and analyse their theoritical implications. Though the attempt shall be to
cover such questions or controversies rather exhaustively, however there is no claim on
our part that there are no other questions which have important theoritical implications.

3.1 Merit Argument.

Meritorian Principle dictates that social goods should be allotted on the basis of one’s
merit on ability, whether natural or acquired. Leaving aside the general intricacies in the
application of the principle, in such matters as admission to institutions of higher
education or appointment to the state services it will require that the candidates are
selected on the basis of their individual merit, i.e., their ability in terms of achievement of
certain grades or marks in an objective test-generally a test of intelligence plus
knowledge- held for that purpose. Supporters of this principle claim that it assures best
justice in so far as it allocates the rewards or goods on the basis of an objective criterion
having nothing to do with such personal characteristic of an individual as his birth, race,
colour, sex, caste, etc.102[71] They say that it also satisfies the justice precept of “treat
like cases alike and diffferent cases differently” in so far as it provides a criterion of
immediate relevance to the good to be distributed. This principle assures the selection
of the ablest persons from amongst a large number for the limited goods or

102[71]
See V.C. Mishra, Bar Council of India Review, Vol XVII, New Delhi 1990.
opportunities available for distribution. It also assures a strong society and its overall
progress in so far as it provides incentive for hard work and the development of superior
mental and physical capacities.

It appears to be a bit weighty argument but a closer examination reveals its

weaknesses. The notion of merit itself is subjective. What is merit after all ? Merit has
no fixed or definite meaning free from variations. It is nothing but a criterion to achieve
some pre-determined social objective or value or to satisfy certain perceived social
need. It does not control the objective value, or need, but is controlled by them. 103[72]
Thus the merit must vary according to the variations in the social objective, value, or
need for achievement or satisfaction. For example, in a society suffering from under
population due to long term war or any other reason, production of more children may
be a merit and parent may be rewarded for producing more children because the
society needs an increased growth of population. Production of more than one or two
children may, however, become a demerit in an overpopulated and underdeveloped
society. Similarly, high grades or percentage of marks in educational examinations may
be a merit for teaching assignment because the object is to have intellectually sound
persons, but for a police or defence job where predominantly physically strong men are
needed, physical strength and not the grades in examinations may be the merit.

According to Prof. Dworkin, there is no combination of abilities and skills and traits that
constitutes “merit” in the abstract; if quick hands count as “merit” in the case of a
prospective surgeon, this is because quick hands will enable him to serve the public
better and for no other reason. If a black skin will, as a matter of regrettable fact, enable
another doctor to do a different medical job better, then that black skin is by the same
token “merit”as well.104[73] Prof . Dworkin does not say that merit is unimportant , the
thrust of his argument is that merit itself can be defined in such a way as to make way
for particular kinds of persons in view of social demands and necessities. It is indeed
determined in terms of perceived social objectives, values or needs and is bound to
change with the changes in the latter.

One may take an example to illustrate the point in another manner. Suppose for
example there are three boy claimants for one ticket of a cricket match show. To whom
103[72]
M.P.Singh, Reservation Crisis in India (Ed) V.C.Mishra, Universal Book Traders, New Delhi, 1991.
104[73]
Bakke’s Case : Are Quotas Unfair, in “A Matter of Principle”, Ronald Dworkin, Harvard University
Press,1985.
out of these the ticket should go on the basis of merit ? To one who has the highest
score in the last examination, or the one who has demonstrated exceptional potentiality
to obtain better scores in future, or the one who does not fall in either of these two
categories but has demonstrated immense interest in cricket ? An answer to these
questions would depend on what our ultimate objective are. If we want to encourage
talent and effort by rewarding it, the boy with highest marks should get the ticket, if we
want to encourage the effort and potential , the second boy must get the ticket. And if
we want to encourage sports, particularly cricket, the ticket must go the third boy.

Two general conclusions may be drawn from this discussion. First, since merit is
dependent upon the value, goal, or the objective to be achieved, a society or the
dominant group in a society may set such objectives or goals for which the members of
that groups are most suitable and thus use the apparently objective looking criterion of
merit to exclude other groups from the social good. For example, a warrior class or race
in power may say that they need physically strong and well built men in all walks of
public life and administration and accordingly all positions will be filled on the basis of
physical strength or prowess. On the face of it physical strength appears to be an
objective criterion, but in fact it may result in constant and uniform exclusion of the
under nourished and weak.

Secondly, since the merit is determined for serving the perceived social needs or values
of the day, satisfaction of such needs is the end and merit is simply a means to achieve
that end. For example, efficiency in public administration may be an end and to achieve
that end standards that may ensure such efficiency may be set as merit. A society may
find that having met the ordinary common needs of the community, it needs highly
intelligent and sophisticated doctors, engineers or lawyers to meet the special needs. To
achieve that end it may decide that to these courses persons must be admitted solely
on the basis of their intelligence measured through a pre-admission test or on the basis
of marks or grades achieved in the previous school examination or both.

Conversely, a society may find that it does not need as much intelligent and
sophisticated doctors, engineers or lawyers, as it needs the ones who can serve the
day to day ordinary needs of the rural and tribal people and may accordingly decide that
persons to these courses should not be admitted on the basis of intelligence alone, but
also on the basis of their suitability to serve the rural and tribal people. And if the society
finds that persons with urban or affluent background are not suitable for the job because
of their unwillingness to serve the rural and tribal people as well as their attitude towards
them, it may decide that persons with rural or tribal or poor background only will be
admitted to these courses or that preference will be given to them. Thus while in the first
case intelligence is the merit for becoming a doctor, engineer or lawyer, in the second
rural or tribal poor background acquires priority over intelligence and becomes merit.

One may quote a similar kind of an example. Suppose, for instance, a country is not
interested in high class cloth, but it wants that everyone must be clad even if the cloth is
coarse. In such a situation the enterpreneurs who can produce cheap cloth even if it is
coarse should have priority, if a question of granting a textile industry license arises,
over those who have highly sophisticated machinery and technical know-how to
produce fine quality cloth beyond the common men’s reach. Thus the capacity to
produce coarse but cheap cloth becomes a merit as against the capacity to produce
high quality cloth.These examples should leave no doubt that merit varies with the
social needs. It changes with the context and is simply a means to achieve certain ends.

A third point which requires to be noted about merit argument is that what we call merit
or talent is not necessarily something which proves the superiority of one individual
over another in terms of effort or dilligence. It depends on a number of factors which
one cannot influence in spite of one’s best efforts and lie beyond one’s control.
Researches have established that intelligence is mainly determined by heredity-
specifically that about 80 percent of variance in IQ scores is genetically determined.
Prof. Eysenck says that “talent, merit, ability, are largely innate factors. In addition to
genetic factors, talent is also conditioned by environmental factors and their interaction
with genetic factors.105[74] This is clear from Jensen’s assertion that something between
one half and three fourths of the average IQ difference between American Negroes and
whites is attributable to genetic factors, and the remainder to environmental and their
interaction with the genetic factors. Even where heredity is the same as in identical
twins, if the social environment is allowed to vary, remarkable differences sometimes
occur. Finally IQ is also dependent upon motivation and motivation to a great extent
depends upon social environment with shapes future hopes, expectations and
prospects.

105[74]
Quoted in V.C. Mishra’s Reservation Crisis in India, Universal Book Traders, New Delhi, 1991.
As such if merit depends upon a number of factors beyond one’s control, is it not as
much suspect as a race, caste, religion, sex or colour for the purposes of classification
of allocation of social goods ? We do not suggest that merit must outrightly be rejected
as criterion of social justice. But those who argue that merit should be the sole and
exclusive criterion should not forget to take into account the factors that constitute it. If
we cannot provide uniform conditions of living and development to all, we have no
reason to prefer the advantaged over the disadvantaged. Such arrangements is prima
facie unjust in so far as it ensures perpetual advancement of the former and
condemnation of the latter.

3.2. Rights Argument.

Articulation of the Rights Argument poses some difficulties. It is generally argued that
affirmative action in favour of one group is discriminatory against others denied of the
same benefits and that is itself denial of equality which is the right of every individual as
an individual and not as a member of any group and therefore cannot be denied to him
simply because he is labelled as a member of an advanced group etc. because another
individual is labelled as belonging to a backward group. Every citizen has a
constitutional right that he is not made to suffer disadvantages, at least in the
competition for any public benefit, because the race or religion or sect or region or other
natural or artificial group to which he is a member is the object of prejudice or contempt.
Prof. Dworkin blasts out the argument. Commenting on Bakke’s claim that he was
denied a seat in a medical school at Davis only because he was white and that he did
not chose to be born as white, he says “ It is true that blacks or jews do not choose to
be blacks or jews. But it is also true that those who score low in aptitude or admissions
tests do not choose their levels of intelligence.” 106[75] Certainly, he would have been
accepted if he were the black. But it is also true, and in exactly the same sense, that he
would have been accepted if he had been more intelligent or made a better impression
in his interview, or, in the case of other schools, if he had been younger when he
decided to become a doctor. And so he concludes that Allan Bakke is being sacrificed
because of his race only in a very artificial sense because of his level of intelligence,
since he would have been accepted if he were more clever than he is. In both cases he
is being excluded not by prejudice but because of a rational calculation about the
socially most beneficial use of limited resources for medical education.

106[75]
Bakke’s Case : Are quotas unfair, in “A Matter of Principle”, By Ronald Dworkin, Harvard University Press,
1985.
Gregory Stanton takes the view that equality may have three but related concepts (I)
Formal individual equality,(ii)Weighted individual equality or substantial individual
equality and (iii)proportional group equality.. 107[76] While formal individual equality is a
synonym of mathmatical equality in the sense that each man is to count for one
irrespective of his characteristics and weighted equality contemplates weightage to be
given to the individual handicaps, proportional group equality means equality among
groups, i.e, if a group of people is shown to be under-represented or is systematically
unable to compete on a formally equal basis with other groups for a job or educational
opportunity or any other highly valued social good, arrangements by way of reservation
of quota can be made to equalise the distribution of benefits between groups. Here the
principle of equality among equals applies not to individuals but to groups. The
individual has been deprived of certain advantages because he belongs to a group and
therefore for benefiting the individuals within that group some weightage has to be
attached to the entire group. And since within the group also there may be more
claimants than the benefits to be distributed, members of that group are allowed to
compete among themselves.

With this view of Gregory Stanton , if one looks at the Constitution of India, one will find
that the concept of group equality in so far as it speaks of special provisions for women
and children and for any socially and educationally backward classes of citizens or for
the scheduled castes and scheduled tribes, reservations of appointments or posts in
favour of any backward class of citizens, promotion of the educational and economic
interest of the weaker sections of the people, and consideration of the claims of the
members of scheduled castes and scheduled tribes, in the making of appointments to
services and posts. In view of these express provisions no one can assert that the right
to equality is always an individual right.

Even in the absence of these provisions the concept of group equality should be
acceptable to both as a matter of practice as well as of principle. In practice, we see that
most legislations, particularly in the area of social welfare, take into account groups and
not the individual. For example, a labour legislation safeguarding the interest of
industrial workers does not take into account the non-industrial worker, though he may
be more in need of such safeguards than the former. The legislation proceeds on the
assumption that the industrial workers as a class or group must be protected from the
107[76]
As Quoted in V.C.Mishra’s Reservation Crisis in India, Universal BookTraders, New Delhi, 1991.
oppression of a class of employers, i.e., the industrialists. Similarly special treatment to
veterans and their children in matters of job or admission to educational institutions is
given as members of a group regardless of the disadvantage suffered by individuals.
Special provisions are similarly made on the ground of group characteristics or
handicaps.

Prof Andre Betielle, in an incisive article on “Distributive Justice and Institutional well
being”108[77] articulates a critique of “group rights” argument. He argues that at a deeper
level the caste system has changed fundamentally. The moral claims of castes over
their individual members have weakened at all levels of society, and especially in the
urban middle class where the battle over benign discrimination is being fought. It will be
safe to say that no caste today has the moral authority to enforce on its middle class
members any of its traditional sanctions. Having freed themselves from the moral
authority of their caste, such individuals are now able to use it instrumentally for
economic and political advantages. In the traditional order , the village priest or the
village barber, or the village scavenger had a moral right to claim a share of the social
product in the name of caste because each of them was bound by the moral authority of
the caste of which he was a member. That moral authority has been, for good or evil,
shattered for ever. On what grounds can individuals now claim distributive shares for
themselves in the name of their caste after having repudiated their moral obligations to
it ?

He further argues that it is difficult to see how the idea that castes and communities
have rights to proportionate shares in public employment can be made compatible with
the working of a modern society committed to economic develoment and liberal
democracy. It is true that caste continues to operate in many spheres of social life; but it
does not do so any longer as a matter of right. The continued existence of caste is one
thing; its legitimacy is a different thing altogether. The attempt to invest the caste system
with legitimacy by claiming that its constituent unites have rights and entitlements is
bound to be defeated in the end; but in the meantime it can cause enormous harm to
society and its institutions. The persistent use of the language of rights in the public
debate for and against reservations is bound to lead to an increase in the
consciousness of caste, and in that way to defeat the basic objective of affirmative
action which is to reduce and not increase caste consciousness. All parties to the
debate say that they wish to dismantle the structure of caste. But caste is not a material
edifice that can be physically dismantled and destroyed. It exists above all in the
108[77]
Economic and Political Weekly, Samiksha Publications Bombay, March 1991.
consciousness of people-in their deep sense of divisions and separation on the one
hand and of rank and inequality on the other; How can we exorcise caste from public
mind by deepening the sense in society that castes are entitled to their separate shares
as a matter of right.

Prof. M.P. Singh109[78] attempts an explanation by saying that certain castes have been
consistently excluded for thousands of years from the goods and opportunities which
they would have certainly desired simply because they belonged to that caste. It is true
that no classifications based on birth should ordinarily be supported by as the things
today certain castes and backwardness are identical. For example, “scheduled castes
and tribes are descriptive of backwardness, and nothing else. For thousands of years
they have been treated as untouchables and denied the right of association with other
members of the socie.ty. They have suffered all kinds of indignities and disabilities not
as individuals but as membes of a group or caste and that entitles them to special
treatment as members of a group without violence to the right of equality of the
nonmembers. The individual’s right to equality in this situation is given due recognition
in so far as the members of the group can compete among themselves for the limited
goods available for distribution or allocation.

This leaves us in a peculiar situation, if the caste criterion is used for providing
protective discrimination the caste divisions are enhanced and identity based on class
or caste lines is underlined. Further on the other hand if caste identities are overlooked
in public employment and for admission in educational institutions of higher learning ,
they are deprived off an opportunity to overcome their disabilities caused due to
exploitation and deprivations of hundreds of years. The solution appears to be lying
somewhere in between-- the golden mean. Where vast disparities either in Indian
situations or in U.S.A., they are required to be redressed. Flexibility is the essence in
the design and application of policies to redress disparities that have arisen because of
many causes.

3.3.Efficiency Argument.

109[78]
Jurisprudential Basis of Reservations, in Bar Council of India Review,Vol XVII, New Delhi, 1990.
It is implicit in the idea of benign discriminations that a less meritorious person is
preferred to another who is more meritorious. The entry of a less meritorious shall
naturally affect the efficiency of the institutional system. Institutions of our socio
economic life like, courts , hospitals, banks, universities, laboratories, posts and
telegraph etc, are the vehicles which negotiate the arduous path of the community
towards a better, more systematic and healthy life. They are useful not just to the people
to whom they provide employment, but for the public at large and the society as a
whole. Indeed the institutions shape harness and channelise the collective energies of a
people in their quest for a better tomorrow. And as it is said, “Rome was not built in a
day” , Institutions do not spring up all of a sudden, they take generations and centuries
in their evolution passing through ups and downs, accumulating experiences of
generations, their trials and travails and acquiring the shape useful for the social
organism. The social utility of public institutions has to be judged not just by the criterion
of employment but a whole range of criteria among which employment cannot be the
most important. If for the purpose of redressing grievances of the past, we tend to
undermine the efficiency of the public institutions, we would be doing unimaginable
harm to the generations to come. It was probably for this reason that when the framers
of Indian Constitution provided for benign discrimination, they also took care of the
efficiency of public institutions and laid down a rider providing that the claims of
members of the scheduled castes and scheduled tribes shall be taken into
consideration, consistently with the efficiency of administration in the making of
appointments to services and posts in connection with the affairs of the union or the
state.110[79] It is therefore argued that the efficiency of public institutions is of paramount
importance

Though efficiency of public institutions is undoubtedly an important value insofar as it

assures greater production and better services, yet its importance has to be compared
with and ultimately set against the significance of such other values as integration,
prevention of discrimination or eradication of stark social injustices. Through that
exercise we might find that for us integration and rectification of socially harmful
deprivations and injustices are as, if not more, pressing needs as efficiency. That was
the demonstrable perception of the constitution makers of the Indian reality and social
needs which have not yet materially changed. Even if we assume the paramountcy or
primacy of efficiency, the connection between the existing test for entry into the services
and the efficiency of administration has not been empirically established.

110[79]
See B.Shiva Rao, The Framing of Indian constitution, Vol.III N.M.Tripathi, Bombay, 1967.
According to Marc Galanter,111[80] “the translation of lower academic accomplishment into
inefficiency in the administration is difficult to trace. It is not clear how well academic
performance correlates with administrative talent. Nor is it clear that differences in the
level of such talents are directly reflected in efficiency or inefficiency of administration…

…..In part the higher scores of others may reflect cultural disadvantages which are
irrelevant to the business in hand; in part, the lower scores of beneficiaries may reflect
a remediable lack of polish and experience rather than lack of native ability.” 112[81] In the
words of Justice Krishna Aiyar of Indian Supreme Court, “The very orientation of our
selection process is distroted and those like the candidates from the scheduled castes
and scheduled tribes who, from their birth, have a traumatic understanding of agrestic
India have, in one sense, more capability than those who have lived under affluent
circumstances and are callous to the human lot of the sorrowing masses. Elitists, whose
sympathies with the masses have dried up are, from the standards of the Indian people,
least suitable to run government and least meritorious to handle state business, if we
envision a service state in which the millions are the consumers….. .. Sensitised heart
and a vibrant head, tuned to the tears of the people, will speedily quicken the
development needs of the country and a sincere dedication and intellectual
integrity… .not degrees of Oxford or Cambridge, Harvard or Standford or similar Indian
Institutions are the major components of merit or suitability.” 113[82]

The thrust of the whole argument is that the concept of efficiency should be related to
our developmental needs and irrelevance or inadequacy of the existing test system to
determine efficiency should be exposed.

3.4. Balkanisation Argument.

It has been noted above that benign discrimination underlines class and caste
differences and enhances the social divisions, which are already acute in Indian socio-
political system. A similar kind of an argument has been made in United States of
America, that affirmative programmes are aimed to achieve a racially conscious society
divided into racial and ethnic groups, each entitled as a group to some proportionate

111[80]
Law and Society in Modern India, By Marc Galanter, Oxford University Press, 1989.
112[81]
Ibid.
113[82]
Quoted by Prof M.P.Singh, in His Jurisprudential Basis of Reservations, op cit f.n. 47.
share of resources, careers or opportunities. 114[83] In India due to the history of partition
and resulting massacre of around one million people, the argument that benign
discrimination tends to divide the people revives the history of tragedies of partition. The
communal virus which started with Ramsay Mc Donald award culminated in the partition
of the subcontinent and generation of issues which remain unresolved to this day. Even
the history of the benign discrimination has not been a smooth one. The extension of
reservations first for the Scheduled Castes and scheduled tribes and then to Other
Backward Classses,(OBC) has already caused so much of heartburn and has led to
ample amount of recriminations. And now the forwards too are demanding reservations.
Demands of Christians and Muslims for reservations, though subdued at the moment,
have started being made. That turns the whole concept of benign discrimination into a
political tool, seeking to perpetuate the power of paternalistic Government, which would
rather dole out, reservations sops and divide the people than encourage people to stand
on their own feet and compete in a world of excellence. All this leads to an acute kind of
anxiety about the integrity of the country.

The proponents of benign discriminations respond to this type of argument by terming it

as a displaced argument trying to discredit the affirmative action programme, whose
moral and philosophical justifications leave little room for doubt, which sustain and
transcend the constitutional text and policy. Their argument is that failure at the
implementation front should not be the reason to discard the policy itself. Prof Dworkin
has sought to articulate the response to the Balkanisation argument in American
context. He dispels the fear that affirmative action programme are designed to produce
balkanised America, divided into racial and ethnic sub nations. They use strong
measures to uplift the weaker and deprived or else they will fail, but their ultimate goal is
to lessen and not to increase the importance of race in American social and professional
life.

Prof. Dworkin writes, “American society is currently a racially conscious society; this is
the inevitable and evident consequence of a history of slavery, repression and
prejudice. Black men and women, boys and girls, are not free to choose for themselves
in what roles or as members of which social group- others will characterise them. They
are black, and no other feature of personality or allegiance or ambition will so thoroughly
influence how they will be perceived and treated by others, and the range and character
of the lives that will be open to them. The tiny number of black doctors and other

114[83]
Ronald Dworkin, Bakke’s Case : Are quotas Unfair, in “A Matter of Principle”, Mass Harvard University Press,
Cambridge, 1985.
professionals is both a consequence and a continuing cause of American racial
consciousness, one link is a long and self fueling chain reaction. Affirmative action
programmes use racially explicit creiteria because immediate goal is to increase the
number of members of certain races in these professions. But their long term goal is to
reduce the degree to which American society is overall a racially conscious society.” 115[84]

According to Prof. Dworkin, the benign discrimination policies in America rests on two
judgments. The first is a judgement of social theory: that the United States will continue
to be pervaded by racial divisions mainly the prerogative of members of the white race,
while others feel themselves systematically excluded from a professional and social
elite. The second is calculation of a strategy: that increasing the number of blacks who
are at work in the professions will , in the long run reduce the sense of frustration and
injustice and racial self consciousness in the black community to the point at which
blacks may begin to think of themselves as individuals who can succeed like others
through talent and initiative. At that future point the consequences of nonracial
admissions programmes, whatever these consequences might be, could be accepted
with no sense of racial barriers and injustice.

This argument perfectly fits in Indian situation as well. The Affirmative Action
Programmes in the form of State advantages, here in India, more elaborate, varied and
specific as they are, have been designed to end the serfdom of a whole section of the
population in which it has fallen due to socio-religious and politico-economic reasons.
The policy is intended to help the historically disadvantaged groups to remedy the
handicaps of prior discrimination impeding the access of classes of people to public
administration, in a society where there exists forward and backward, higher and lower
social groups. The first step in this process is to bring the lower and backward social
groups to the level of forward or higher social group. Unless all social groups are
brought to an equal cultural plane, social intercourse amongst the groups will be an
impossibility. Employment and particularly the government employment promote social
and economic advancement and provisions relating to protective discrimination
precisely aim at achieving this goal. It must be noted in this context that article 15 (4)
and 16 (4) specifically refer to social and educational advancement of disadvantaged
groups. However economic advancement naturally accompany the social and
educational advancement. The expression economically backward or economic
advancement has purposely not been used to avoid the inclusion of majority of rural
population which continues to groan under poverty conditions. Under Indian
115[84]
Ronald Dworkin, op cit, f.n. 52.
Constitution, the protective discrimination programme has been designed specifically to
remedy social disadvantages by way of distribution of state advantages. It must,
however, be ensured that a fortunate few do not monopolize its benefits for ever. A
constant endeavour has to be made that the theoretical justifications are matched by
effective implementation.

XXXXXXXXXXXX
CHAPTER - III

Indian Panorama of Equality and Justice : Ancient and Modern.

Times are not static, they change and so changes the life of a nation. Socio-political
order of any system in particular is dynamic, live and organic and changes introduced
from within or outside initiate a chain reaction in the socio-political life of a system and
have cascading effect on the social scenario. Social mores and ideals change from time
to time in the backdrop of emerging social crises which create new problems and alter
the complexion of the old ones. Indian social system from the beginning of its inception
has been witness to the changes of multiple dimensions. Beginning with the Varna
Vyavastha, the Indian social system boiled down to caste structured system which has
taken such deep roots that the education, economic development , political awareness,
legal institutions, constitutionalism and even modernisation could not not have much
impact on it, so much so that even the Protective Discrimination system, when it was
introduced under the Constitution of India had to be based on the discredited version of
Caste System. It is due to this that we say that the roots of the present lie deeply buried
in our past history.

The present set of policies too have more than 100 years history. Initially the policy was
introduced by the colonial administration to divide and rule the local people and
perpetuate their authority. Apparently a mechanism to maintain the balance of power
amongst different sections of society, though the stated objective was to redress the
inequality in public services. In the post independence period, however, the set of
policies of protective discrimination were adopted as a measure of social Engineering
and for the upliftment of weaker and deprived sections of our society for the purpose of
redressing the ills of the past and ushering in an egalitarian social order.

This chapter is an attempt to trace the long journey of an ancient system to the
present model of administering equality and justice. The ancient past has not certainly
been a blameless one, but his also does not justify Henry Maine’s dismissive remark
that much of Ancient India’s wisdom consisted of ‘dotages of Brahmanical
superstitions’.116[85] This kind of an attitude towards ancient Indian traditions in law and
justice represents the attempts made by the colonial administration to discredit the
ideological foundations of Hindu hegemony of ideas. It would be interesting to learn how
the so called disadvantaged groups in Indian society willingly accepted their position as
part of the Dharmic order of things . India’s genius for accomodation can only be
understood against the backdrop of this Dharmic order which holistically encompassed
all of the society. This social system was not certainly the rigidified hierarchical
structure as it has been presented to be, on the contrary, it was comparatively a
dynamic order unparalleled in the contemporary societies and since it still retains a lot of
socio-political validity, it would be appropriate to understand the basics of it. The point
is , how and whether the inequalities were inherent in this system as has been made out
to be ?Whether the system was inimical to individual liberty ? If yes what remedies
were thought about the propounders of that system or they were simply insensitive
about it ? If not how and why the deterioration set in reducing a whole section of
population to thraldom and worthlessness and thus necessitating a programme of
preferential treatment ? We will start by having a brief sketch of ancient India’s
organising principles of socio-political governance (I), trying to understand the peculiar
setting of Varna system and its rationale (II), which got distorted into a hierarchical caste
structure, the burden of which is still carried by the deprived and exploited sections of
the social system (III), and which ultimately became the base of the present protective
discrimination programme under elaborate provisions of equality and justice under
Indian Constitution(IV). The present model, elaborate, complex and bewildering as it
is , due to the structural complexities, it would not be possible to cover the whole range
of issues that form the part of the present discourse on Protective Discrimination. As
such a few arguments, which have been debated in other politico-legal systems
(especially U.S) as well, shall be taken up for the purpose of putting the things in
perspective.

1. Context of Ancient India’s Socio-political governance.

Before we look at the ancient Indian paradigm of equality and justice, we must
understand the fact, bewildering as it may appear to a western mind, that the organising
principles of Ancient India’s socio-political arena were not rights but the duties. Hindu
constitutional writers have approached the problem of socio-political organisation from
quite different point of view. They usually describe not the rights of citizens but the
duties of the state; the former are to be inferred from the later. Similarly they discuss
the duties of citizens from which we are to infer the extent of the control, the state could
exercise over the citizen. Every individual being, realising the five kinds of debts he
owes towards the system has to concentrate on his duties, without caring for the likely
116[85]
S.S.Dhavan, Indian Jurisprudence and the theory of State in ancient India, Mussorie, National academy of
Administration, Printed Lectures, 1962.
outcome. That’s how Geeta puts it, “therefore perform your duty effeciently without
attachement, because it is only by actions without attachment that a man can attain the
supreme”.117[86]

Another important point which is peculiar to a western mind and is required to be noted
for a proper understanding of India’s jurisprudential tradition is that there is no essential
conflict between individual and society or the state. The western tradition separates the
civic and political life of the citizen from that of his moral and spiritual life and defines his
rights as against the state which is assumed to be hostile to individual liberty. Hindu
tradition considers political duties of the citizens as part of his general duties (Dharma)
and assumes that there is no primordial conflict between the state and citizen
necessisating a clear cut definition of rights and obligations of both. 118[87] The very
existence of the state is for the purpose of promoting all sided progress of the citizen.
State as such is indispensable for the progress and happiness of the individual.
Individual on his part having the sense of obligation due to the five fold debt, 119[88]he
owed to the system as a whole could sacrifice himself for a bigger purpose. State as
such for the Hindu system is not a necessary evil but a necessary benefactor. The
conception of individual rights therefore could not be a major problem for political and
jurisprudential thinking. The proponents of Hindu system had no presuppositions of the
possibility of the suppression of the individual and therefore no pretentions were made
to secure the rights of an individual.

With this essential complementarity of the individual and the state under Hindu system,
when we approach the conception of equality of citizens, the individual citizen is to be
understood and defined from a holistic perspective and from the perspective of
individuals goal in life. The purpose of the individual as well as that of the state is to
take care of the personality of the individual and ensure its all round development . As
such the ultimate goal of both the individual and the state, so to say the Dharma of both
entitities is “Yato Abhyudayh Nihshreyasah sa Dharmah”, i.e. something which ensures,
complete,absolute and best of development is Dharma and therefore ensuring such an
environment wherein the character, and the potential of the individual finds their fullest
development is the duty of the state and as such the right of the individual . Such an

117[86]
Shrimadbhagwadgeeta, 2/47.
118[87]
The Cultural Polity of Hindus, Dr. Nandkishore Acharya, Richa Publishers, Bikaner, India.(1969)
119[88]
According to Manusmriti (73/69), five kinds of debts, an individual owes to the social system. They are Dev
Rin,(Debt of Gods) Rishi Rin,(Debts of the teachers and sages) Pitr Rin,(Debt towards ones ancestors) Manusya Rin
(Debt towards ones companions with whom one grows into a fully developed unit of the social system) and Bhut
Rin (Debt towards the environment).
individual whose personality character and potential are developed in a balanced
manner shall in turn help in the evolution of the societal and state system and contribute
his bit in the overall growth of a united entity, call it state or society.

Individual personality in the Hindu scheme of things is not considered to be

unidimensional or unilinear. It is complex of various interacting factors, having many
layers of consciousness. At the physical level, the basic equality of the matter
constituting the human body is recognised. “ One who considers everybody (including
the every creature of the living world) like his own self is the true knowledgeable
person”.120[89] At this level human body is nothing but a vibrating pulsating mass of
neurons. As such there is no difference between A and B. What distinguishes the two
are the means of experiencing the outer world. This is the level of consciousness. At the
other level, i.e. the level of physical being, no two individuals are similar in any way
whatsoever. Basic nature, circumstances, the character and the potential which an
individual is born with, can never be the same for any two individuals . This diversity of
natural propensities is to be taken into consideration by the system providing for
balanced development of any human individual .

State system has to recognise that no two individuals are similar in their natural
propensities and therefore a uniform regimented system would not help every individual
in achieving his fullest growth. No one individual is either a paragon of virtues or simply
a bundle of evils. On the contrary every individual person posseses a unique
combination of virtues and vices. The system cannot simply think of providing similar
educational facilities, allowing every potential of every individual to develop, rather the
system has to take care, and devise the whole educational and cultural set up in such a
way that the vicious propensities of the individual are curbed and the virtuous
propensities are allowed and helped to flower fully. Aristotelian concept of applying
equal laws amongst equals is no different from this. And the concept of equal protection
of laws, under Indian Constitution speaks in the same vien.

Psychological researches establish it that our mind is conditioned at a very early young
age. It works on the basis of some established beliefs and set convictions. India’s
philosophic traditions aim at conditioning of human mind at an early age in such a way
that man grows with a sense of gratitude and obligations towards all those forces which
120[89]
Atmavat Sarvabhuteshu yah pashyati sah Panditah, (Hitopadesh, Vishnu Sharma)
nurture his elements and psychological personality. He is not allowed to develop the
sense of conflict or dichotomy towards the system which he considers as
complementary to his personhood rather than contradictory to it. It is for this reason that
the complexion and texture of the philosophy of rights in Indian context is a bit different
from that of the west and that has got to be understood for the proper understanding of
India’s ancient jurisprudential thinking, which somehow impinges on the thought
process of policy makers, legsilators, judges and academicians, even today.

2. Varna System (the Classificatory Principle)

It may be noted that the purpose of any legal system anywhere in the world and for
that purpose of Dharma in particular in India has been to control and regulate human life
without unduly intervening in his private life and natural liberties. There are two sides of
this control or regulation, social and individual. Every individual has a certain definite
place or status in the society and the duty he owes to the social system are based on
this status. This is called “Varna Dharma”. It represents the social side of Dharma and
the individual side is represented by the Ashrama Vyavastha, which relates to various
stages of individuals life, young age, middle age and or old age etc. 121[90]Looking at
the social side of the individual, individual is not an absolute entity. His ultimate ambition
can be realised only in a well regulated social system wherein he has a definite place
and a role to play.

It is on the basis of his natural potential and his role in the social system that he
becomes part or member of a particular group or community within the social system.
Some one who is intellectually very sound and is adapted in policy issues for social
regulation, is known as Brahmin. One who is physically powerful and has leadership
qualities,, capable of protecting the oppressed and the weak becomes the one who
supports such measures and implements those policies with the help of sanctions he
possesses and is known as Kshatriya. Those who are efficient in economic planning
and execution, they either themselves or with the help of the labour perform their duties
for re-inforcement , perpetuation and development of social system and contribute
towards economic well being of the social organism are known as Vaishyas. And those
who find their fulfillment and expression in labour and services of others are known as

121[90]
Dr. S. Radhkrishnan, Eastern Religion and Western Thought, Rajpal and Sons New Delhi, 1971.
Shudra. This four-fold division of labour in Ancient India was known as Varna system
contemplated for the wellbeing and evolution of socio-political system.

This Varna System was originally an arrangement for the distribution of functions in
society, just as much as class in Europe, but the principle on which this distribution was
based in India was peculiar to this country…… A Brahmin was a Brahmin not by mere
birth, but because he discharged the duty of preserving the spiritual and intellectual
elevation of the race, and he had to cultivate the spiritual temperament and acquire the
spiritual training which could alone qualify him for the task. The Kshatriya was kshatriya
not merely because he was the son of warriors and princes, but because he discharged
the duty of protecting the country and preserving the high courage and manhood of the
nation, and he had to cultivate the princely temperament and acquire the strong and
lofty Samurai training which alone fitted him for his duties. So it was with Vaishyas
whose function was to amass wealth for the race and the Sudra who discharged the
humbler duties of service without which the other Varnas could not perform their share
of labour for the common good. There was no essential in-equality between a brahmin
and a sudra since both of them were the necessary part of the single “Virata Purus”
(cosmic spirit).

Etymologically speaking the word Varna is derived from the original sanskrit word “Vri”
which means and stands for chosing or selecting a thing. Thus the word “Varna” implies
the occupation chosen or selected by an individual in accordance with his nature,
disposition, genius and temperament 122[91]. The first use of the term “Varna” is found in
Rigvedic texts in which the mankind has been divided into two . “Vijanihyarnye cha
dasyavoh”123[92] i.e. men are of two kinds “Arya” i.e. noble and “Anarya” the idiot or
Shudra.124[93]

Prof. P.V. Kane, after carefully studying the ancient scriptures, concludes that in the
earliest times about which literary record exists, there were only two Varnas, the Aryas
and their opponents, Dasyus or dasas, who were later subjugated and given a position
subservient to Aryas125[94]. But later owing to cultural advance, division of labour arose
and numerous arts and crafts developed and they were in the process of contributing to
122[91]
Rigvedadi Bhashya Bhumika, Varnashrama Dharma Vishay, Chaukhamba Publishers Varanasi, 1975.
123[92]
Rigveda, Purush Sukta.
124[93]
Ibid.
125[94]
P.V. Kane, History of Dharmashastras, {1968} Vol – I Bhandarkar Research Institute Poona.
the complexity of the system by creating numerous subcastes based upon
occupations126[95]. The most prominent and known use of Varna is found in Yajurveda,
wherein four types of Varnas have been accepted.

Brahmanasya mukhamaseet Bahu Rajanyah Kritah

Uru tadasya yadvaishyah padabhyam shudro ajayat.127[96]

A rough and precise translation of the verse is that the Brahmin is born out of the mouth,
the kshatriya from the arms; the vaishya from the stomach and the shurdra is born from
the feet of the Lord. Manu talks about the same in the following manner.

Lokanam tu vivardhyartham mukhbahurupadtah

Brahmanasya Kshatriyam vaishyam shudram cha nikhartayat

i.e. the Lord has created four Varnas, Brahmin; Kshatriya, vaishya and Shudra for the
upkeep and betterment of society corresponding to the four limbs of the Lord. That
means that four Varna system has been bestowed on the world by the Lord, the creator.

The point worth noticing is that doubt about this theory of Brahmanas having taken birth
from the mouth of the Brahma etc. arise when we take the words at their face value i.e.
when we do the literal interpretation of the text. However the fact is that this is figurative
or rhetorical or symbolical representation that Brahmana has been born from the mouth
or the head of the Brahma. This may be illustrated by way of an example. Rigveda
states that the King has been made out of eight elements i.e. Indra, vayu, yama, surya,
agni, varuna, chandra, kubera 128[97]etc. Evidently the king cannot be produced by eight
elements, simply because the temporal body of human beings have been constituted of
five elements i.e. earth; water; fire sky and air. The Eight elements said to be the

126[95]
Ibid.
127[96]
Yajurveda.
128[97]
Manusmriti, 1/87
constituting elements of the king are the eight virtues which are expected to be
found/inhered in a king and as such this implies the virtues of the king.

Manu too talks about four varnas in the varna vyavastha based on Vedas and the point
to be noted in this context is that the system is based on Karma (deeds)and not birth.

Sarvasyaasya tu sargasya guptyartham sa mahadyutih

Bahurupajjaanam Prithakkarmapyakalpayat .129[98]

This implies that the Almighty God has created four varnas for the security, order and
prosperity of this earth, corresponding to the four limbs of the lord and the Karma of a
particular varna shall be entitled for the same. The term varna itself establishes that this
system is based on karma and not birth. Etymological meaning of the word Varna is
given in Nirukta “Varno vrinoteh”130[99] meaning thereby that something which is
chosen/selected by the person according to his karma is varna. Commenting on this
Swami Dayananda Saraswati writes .

“Varno vrinoteriti niruktapramanyad varniya varitumarhah,

Gunkamani cha drishtwa yathayogyam vriyante ye te varnah.” 131[100]

i.e. the right given to an individual after observing his qualities and dispositions is the
varna. Further the etymological meaning of the different varnas explain the karma
{duties} of a particular varna and it is by adopting the duties of a particular varna. The
etymological explanation or the derivation of the word Brahmana is “ Brahmana Veden
Parmeshwarasya upasanen cha sah Vartmano vidyadi uttamayuktah Purushah”
132[101]
i.e. one who devotes oneself in the studies and thought of the Vedas and the God,
and bears a good moral character is Brahmana. Manu too states the same thing.
129[98]
Ibid, 1/89
130[99]
Nirukta 2/1/4
131[100]
Rigvedadi Bhashya Bhumika, Swami Dayananda Saraswati, Chaukhamba Prakashan Varanasi, 1975
132[101]
Ashtadhyayi, 4/2/59
According to him to study and teach Vedas, to do and getting done the yagnas, and to
give and takes alms/donations are the six duties/deeds of the Brahmana.133[102]

The word Kshatriya is deived from the original word kshat and has been explained
etymologically in Nirukta “ Kshadati Rakshti Janan kshatrah” 134[103]i.e. one who protects
public from violence, invasion or loss etc. is kshatriya. Manu explains the duties/deeds
of the Kshatriya

Prajanam Rakshanam Danamijyadhymeva cha

Vishayeshva prasavittashcha kshatrisya samasatah.135[104]

i.e. one who devotes oneself for the thorough studies of Vedas, performs agnihotra
yagnas, gives alms to worthy people, assures protection, the public at large, not allured
by worldly vices and has control over himself, is benign, noble and humble is the
kshatriya in the real sense of the term. Here the doubt may arise due to the use of the
word “eeya” in the sense of an offspring, whether Manu treats birth as the determiner of
the varna of an individual? An approved answer to the doubt is that the relation of an
offspring is established not only by birth but by transfer of knowledge or virtues too. For
example there are supposed to be no wife/offspring of surya, varuna etc., but still due
to the relation of cause and effect and the transfer of knowledge the son of Aditi is
called Aditya, the wife of the sun is called Suryaa and so on. 136[105]

The term Vaishya too is indicative of the varna system based on merit and deeds and
not by birth. Yo yatra tatra vyavaharvidyasu pravishati shah vaishyah vidyakushalah
jano va” 137[106]i.e. one who engages in different types of business relations and is
different in different pragmatic relations is vaishya. In this connection Manu states

133[102]
Manusmriti, 1/88
134[103]
For similar views see Etareya Brahmana 8/2
135[104]
Manusmriti, 13/1/53
136[105]
Ashtadhyayi, 2/1/19
137[106]
Vasudha Smriti, for similar views see Tandya Brahman.
 Pashunam Rakshanam Danamijyadhayayanmev cha

138[107]
Vanikpatham kusidam cha vaishyasya Krishimeva cha .

i.e. the protection and betterment of animals like cow, investing money for progress of
knowledge, performing yagnas like agnihotra etc., studies of Vedas and other
scriptures, doing all kinds of business, not taking interest more than 1.25 percent and
not less than 0.25 percent ,not accepting even a penny on receipt of double the original
money. The less interest he takes the more he progresses in terms of money, his
dynasty will never suffer from penury and birth of an idiot offspring. 139[108]

Like Brahmin, kshatriya, and vaishya, shudra too is indicative of a varna system based
on merit and deeds. “Shudrah shochniyah shodhyam sthitimapanno va sevayam
sadhur avidyagun sahito manushya va”140[109] i.e. Shudra is that person who can never
obtain the position of uprightness due to his ignorance and the one who is looked after
by a swamin i.e. the owner. Further “Ashato va Esha Sambhuto yat Shudrah”141[110] i.e.
one who suffers lowliness due to his ignorance and idiocy and the one who can only
serve his master is called shudra. Writing on the social status of a shudra Manu writes

Ekmeva tu shudrasya prabhuh karma samadishat

Etevameva varnanam shushrushamanayuya .142[111]

i.e. one who is devoid of knowledge and cannot be taught by teaching process but is
efficient in terms of physical robustness, the Lord has instructed him to serve the three
upper varnas of Brahmin, kshatriya and vaishyas without any ill will. This may create a
sense of inferiority and worthlessness of an individual who is shudra. But in fact there is
nothing in the varna system that may warrant this assumption. Manu has used the word
138[107]
Manusmriti 1/90
139[108]
Satyartha Prakash, Swami Dayananda Saraswati, Chaukhamba Prakashan, Varanasi, 1968.
140[109]
Unadi Sutra Path, 2/19
141[110]
Taitriya Brahmana, 3/2/39
142[111]
Manusmriti, 1/91
Shuchi while explaining the duties of shudras, which stands for purity of mind and body.
And this is also self evident that a person who serves others can never be treated as
lowly, inferior or worthless.Justice Rama Jois explains “ the Superiority or inferiority of
an individual by birth in any one of these classes appear to have not been in existence.
For instance Valmiki and Vyas, the authors of two great epics, the Ramayana and
Mahabharata, who are regarded as the greatest poets and writers and philosophers of
the country and who are held in the highest esteem down to this day by all sections of
society, belonged to the fourth and second Varna respectively”143[112] Further it must be
noted that shudra is not by birth but one who cannot become Dwija or twice born by
studies of Vedas is shudra or Ekjanma i.e. one who is one time born. He is treated as
shudra since he is not twice born by knowledge; the shudra is also called by the
synonym Ekjanmah.

It is worth noting that castes were not hereditary, and this demonstrated by a verse in
Rigveda where a poet exclaims “ I am a reciter of hymns, my father is a physician and
my mother grinds corn with stones”. 144[113] In another verse in Rigveda a poet asks the
God Indra; “Oh Indra! Fond of soma, would you make me the protector of the people, or
would you make me a king, would you make me a sage that has drunk soma, would you
impart me endless wealth.” 145[114]This shows that the same man could be a sage, or a
nobleman or a kind, depending upon his desire and activities.

The most authentic description of varna system and the duties of different varnas is
supposed to have been given in Mansumriti. The provisions of Manusmriti make it clear
that varna system used to structure/design social system according to ones deeds and
not by ones birth as such. The best illustration/argument to support this proposition is
that Manu had discussed at large the duties of various varnas. Had he treated varna to
have been determined by birth, there was no question of discussing the merits and
demerits or duties and rights of various varnas since the same had been determined by
their birth only and the deeds of an individual would not have affected his place/status
in the social system. If an individual born in a Brahmin family does something which
does not suit his place/status in he society and is still held to be a Brahmin, the same
undesirable deed would not affect his station in life at a later stage. The account of acts
prohibited by law, the duties of various varnas specified and other provisions of
Manusmriti amply demonstrate that Manu treats the merit and demerits of an individual

143[112]
M.Rama Jois, (1984) Legal and Constitutional History of India, vol. I N.M.Tripathi Bombay.
144[113]
Rigveda, IX, 112.3
145[114]
Rigveda III, 44.5
according to his deeds and not by birth alone. If the merit of an individual is accepted
by birth alone the entire Karma system of Manu will collapse. He treats every individual
a shudra by birth. “Janmana jayate Sudrah” i.e. ever body is a sudra by birth and his
merit or station in life is determined by his acts and deeds. The Manusmriti is suffused
with various examples of it.

Shudro Brahmanatameti Brahmanshchaiti Shudratam

Kshatriyajjatmevam tuVidyadvaishyattathaiva cha .146[115]

The above sloka implies that a Brahmin, may turn into a shudra and shudra into
Brahmin, depending on ones deeds and actions. A person born in a Brahmin family
may remain a Brahmin only if his deeds are like those of a Brahmin, otherwise he
lapses into shudrahood. Similarly an individual born in a shudra family remains a
shudra only if his deeds are those of a debauched person. On the contrary if his deeds
are like that of a Brahmin or kshatriya he gains the varna suiting to his karma; deeds
and disposition. According to Manu one who does not follow his duties turns into a
shudra. He writes

Yondheetya dwijo vedamanyatra kurute shramam

Sa jeevannev shudratwamashu gachhati sanwayah . 147[116]

Roughly the above sloka implies that a Brahmin who instead of studying Vedas invests
his energies in the study of other things attains the shudrahood alive alongwith his
family. The question may arise why an entire family should lapse into shudrahood for
the deeds of a single person in the family ? The reason is that one who does not study
Vedas gradually looses his erudite and lapses into shudrahood and once the head of
the family is shudra how can he teach/transfer the erudite to his dependants and
therefore they too lapse into shudrahood. The point to be noted in this connection is
that the word veda here has been used as a synonym of knowledge . Not only this, but

146[115]
Manusmriti, 10/65
147[116]
Manusmriti 10/66
one who keeps company of shudra i.e. who is not knowledgeable, too becomes shudra.
Manu writes

Uttamanuttamangamangachhanheenanheenasch varjayan

Brahmanah Shreshthatameti Pratyavayen Shudratam. 148[117]

i.e. a Brahmin by keeping in touch with meritorious and knowledgeable people and by
leaving the company of shudras and debauched, keeps on attaining merit after merit.
One who acts contrary to it lapses into shudrahood. A noticeable point in this connection
is that the word Brahmin here, has not been used for the person born in a brahmin
family but for the one who attains Brahminhood by his deeds and dispositions. The
terminology of Manusmriti is such that the symbolical words are to be interpreted in their
right context and meanings given accordingly. The way a Brahmin looses his
Brahminhood by not doing the deeds suiting to his Varna, similarly a person born in a
shudra family may attain Brahminhood by doing the suitable deeds.

Shuchirutkrishta shushruvurmtaduvaganah kritah

Brahmanadyashrayo Nityamutkrishtam jatimashnute 149[118]

i.e. a shudra of pious body and character serving the higher castes, if is soft spoken and
devoid of pride may attain Brahminhood or the Dwijanma i.e. twice born Varna .It was
because of this that Chokha Mela, the maratha pariah, became the revered teacher of
a Brahmin, who was proud of his caste purity. The chandala, (an outcaste who takes
care of the burning of died bodies) taught Shankaracharya 150[119]for a Brahmin was
revealed in the body of the Pariah and in the Chandala there was the utter presence of
the Lord Shiva. There comes a story in Mahabharata, 151[120]that an established Brahmin

148[117]
Manusmriti 4/45
149[118]
Manusmriti 9/335
150[119]
Shankaracharya, born in 8th century, was one of the greatest religious teachers of India who revived the Vedic
Studies and established that Indian Culture is Vedic Culture and that an essential unity exists in the Indian masses
from north to south and East to West.
151[120]
One of the two all time great Epics of India, based on a story of Mahabharat War supposed to have been
fought more than five thousands years back.
named Kaushik gets an elaborate lecture from a butcher, “ You appear to have attained
the Brahminhood only in this birth for you are so full of pride, and are enmeshed in
human vices, therefore you are no better than a Sudra”. 152[121]

The above brief exposition of the provisions of Manusmriti and other scriptures makes it
clear that the varna system of the ancient period far from being birth based rigid system,
was based purely on ones deeds and was designed for the maintenance of law and
order and progress of the system. The rigidity of the later period jati system was not at
all existing and everybody was free to raise or lower his station in life by his action and
deeds. The people were divided into four Varnas but the Varna system was designed
for the peace and progress of the people at large. The people were equal by birth and
there were available ample opportunities of social mobility horizontal as well as vertical.

It is commonly believed and alleged many times that the caste system has really
hampered the growth of a democratic system. Dr. Radhakrishnan, however considers
the Varna System as perfectly democratic system. Firstly, because system believed in
perfect equality at the spiritual level, (Atmavat Sarvabhuteshu……..) The system was
based on the belief that everybody is the expression of the Supreme Lord and has a
natural and fundamental right to develop his person to the fullest extent. Secondly, it
also establishes a system of responsibility and accountability. Individualism is not
fulfilled by running away from the limitations of responsibilities and accountability. The
true individualism lies in the willing acceptance of the social responsibilities tempered
with propriety and honesty. Thirdly this system also recognises that all functions have
social utility but economically speaking no particular function has any priority. Fourthly, it
must be understood that social justice is not a system of rights but a system of equal
opportunities. No democratic system would accept that all individuals in the state
system should be alike. State is some kind of a machine, an organic system, different
parts of which have to perform different functions. What does equality under a
democratic system implies is that every part of the system has a right to make his
contribution and shall get an opportunity of doing so . Last but not the least individual
liberty under a democratic system also implies the regulation of liberties. Under this
system a proper balance of spiritual, political and economic power rules out any kind of
misuse of power of any organ of the state system.

152[121]
Mahabharat, Van parva, III/75-84.
Under this fourfold division, everybody has to work according to his choice, potential
and propensity and has to achieve their fulfilment. A human individual is niether a single
cell like creature nor a machine which can be bought and deployed for performing a
particular task, according to the choice of the buyer. Human individual is in fact the
manifestation of the supreme, the cosmic spirit and what should he do should be
determined according to his inborn qualities.

3. Deterioration of Varna System into Rigid Caste System.

During the later years of vedic times and post vedic period the varna system started
loosing its shine and there started appearing cracks in the system. Though the varna
system during this period too remained deed based and there still was a bit of mobility
amongst castes wherein changing ones varna was still possible, however the mental
horizon of the people had started narrowing down. There was no prohibition of varna
marriages amongst three Dwija varnas. Shudras were placed at the lower station in
social system but were not looked down upon. There certainly was no system of
untouchability, rather the responsibility of looking after the welfare of the shudras shared
by the three Dwija Communities.

With the changing times, however, the rot started setting in. Now the offsprings of
Brahmins were started being identified with the specific tasks of Brahminhood and
offsprings of kshatriya for the tasks for kshatriyahood. The willingness to change ones
varna had started weakening. Though the mobility amongst different varnas was still
possible in theory; the instances of change from one to another varna had started
becoming rare. The varna system which was deed based hitherto, now started taking
the shape wherein the birth was important in determining the status of an individual. The
offsprings of different varnas started inheriting the membership of the particular varna.
Brahmins were at the apex of social system due to their established status in society,
now they fortified their position by interpreting the Vedas in their favour. The systemic
flux gave rise to Budhism and Jainism who attacked Brahminism by emphasising upon
the equality of birth and deed based varna system. Since kshatriya gave protection to
these Dharmas the status of kshatriyas in the social ladder recorded an improvement.
 When the Budhism and Jainism too started showing the signs of decline, the
Brahmins once again raised their positions. Rigidity in marital relations and turning of
varna system into caste system was followed by formation of clusters of jatis{castes}
and upjatis {sub-castes}. The predominance of rituals prohibited intercaste marriages.
Though anuloma, i.e. the marriage of a high caste male with the low caste female was
permissible, their offspring were looked down upon and were treated as crossbreeds
and hybrids. 153[122]The duties of different castes and subcastes had become determined
and at this stage of social development appeared untouchability. The social status of
shudras had recorded a steep downfall. Brahmin made full use of their status and
interpreted Vedas and shastras in their own way distorting the right meanings of the
terms.

The Manusmriti had established an ideal system of rules for the regulations of
social behaviours. But the essence of it had now been lost. The interpreters like kulluk
Bhatt wrongly interpreted the Vedas and Dharmashastras to serve their vested
interests. Due to these interpretations the position of Brahmins in society had become
fortified but then status of shudras and women had been lowered considerably. The
word Varna had now become a dead letter and the varna system was now replaced by
the caste system which was of a different genre altogether. There were mainly four
Varnas initially, i.e. Brahmin; kshatriya, vaishya, shudra, But now these were subdivided
into various subcastes. Intercaste marriages were prohibited altogether and marrying in
ones own community was made essential. Anuloma marriage were permitted, but for
the offspring of such marriages there was a different caste system. Like marriages, strict
do’s and donts were prescribed in food relations too. Occupational structure of the
social system now had become completely based on inheritance. Administration and
reins of power were now completely in the hands of kshatriyas. Kshatriyas {Rajputs}
accepted this version of social system simply because it did fit in the protection of their
immediate interest of continuance of their tutelage. And since Brahmins were being
protected by the administration they once again came to dominate the scene. Religious
rites had now become ritually dominated. Upnayan {wearing of sacred thread} was now
completely prohibited for shudras. They were now banned from, entering into temples
and places of worships to offer their pujas etc. Study of Vedas too was banned for
shudras. This resulted into a kind of molopoly over vedic studies in the hands of
Brahmins who interpreted Vedas and shastras according to their whims and to serve
their vested interests. State administration has turned into inherited monarchies, as a
result of which the king started becoming lusturous, indignant, indulgent; weak and
tyrants. The weak and ignorant kings came to occupy the throne and head the

153[122]
M.N.Sriniwas: Caste in Modern India, Asia Publishing House Bombay, 1962
administration.154[123] The opportunists and weak-kneed elements filled in the layers of
administration which ultimately resulted in the weakening of state system which enabled
foreign rulers to invade loot and occupy the country at various points in history.

According to Justice Ramajois “In the meandering course of our history the society got
divided into innumerable castes and subcastes. The evil of discrimination as high and
low among men on the basis of birth, hereditary avocations and other considerations
raised its head and the pernicious practice of untouchability with all its degrading
inlications came into existence”.155[124]

The week-kneed executive and resulting chaotic administration attracted the marauding
invaders of medieval times and with the onslaught of invasions starting in 327 B.C. India
faced foreign armies, including the huns, Arabs, Turks, Afghanis, Persians, Mongols,
Portuguese, French, and British . India came under Muslim rule around 12 th century
A.D. for more than 600 years until the Britishers took over the power at the end of 18 th
century. This affected the socio-economic and politico-cultural system in far reaching
manner. According to Dr. Sarvapalli Radhakrishnan, 156[125] some of the early invaders
like Huns were very cruel and uncivilised and caused a lot of bloodshed in the process
of their invasions. When such people and races started settling down permanently, and
a situation developed wherein the locals were compelled to stay with them, it was then,
that marriage and social interaction were restricted and that resulted into coming up of
caste system. Who should belong to which varna, was very difficult to determine taking
into consideration the psychological propensities of different people. It was in such a
situation that birth started being considered the basis of classifying different Varnas.
Once this system got established, it became rather an imperative to maintain the
sanctity of the descent by education or tradition.

With the decline of Mughals there started European incursions, another curse for the
already fractured socio-economic and politico-cultural Indian system. In the course of
time Britishers came to predominate the Indian scene. They were no reformers or
charityists. They were hard core businessmen and wanted to exploit the resources of
this land for their own gain. As such the economic exploitation of the country continued

154[123]
L.P.Sharma, Ancient History of India, Calcutta, 1978.
155[124]
M.Ramajois, {1984} Legal and Constitutional History of India, Vol-I , N.M.Tripathi, Bombay.
156[125]
Eastern Religion and Western Thought, Rajpal And Sons, New Delhi, (1971)
and the empoverishment of Indian subcontinent coincided with the industrial revolution
of Europe , with the Britain working as the engine of growth in European subcontinent.

Since the Britishers had only economic interests here, no attempt was made to reform
the socio-cultural system of the country and the already existing social evils were used
by Britishers to perpetuate their exploitation. There were attempts from within Hindu
society to reform and rehabilitate the system. Swami Dayananda Saraswati in the late
19th century attempted to reform the system from within by removing social evils and
invigorating the system. He was basically a social reformer and the Shuddhi movement
started by him was intended for removing social evils from Hindu society. It also
created an undesirable crack in Hindu Muslim relations. Jyotiba Phule by establishing
Prarthana Samaj worked for the social upliftment of the deprived and underprivilieged
sections of society. Raja Ram-mohan Roy saw a close link between social and political
progress and he perceived improvement in social conditions as essential for
improvement in political conditions of the country. He attacked idolatory, and through
his scholarly research established that idolatry was not sanctioned by Vedas and
Upnishads. Secondly he tried to get the barbarous practice of Sati abolished. He took
up the cause of women and raised the voice against the discriminatory and unjust
treatment meted out to them and also favoured widow remarriages. 157[126]

Before we move on to next section, it should be taken note of that the rigidity and
inflexibility which has come to mark India’s caste system characterised by inequality and
hierarchical nature, was not inherent in the traditional social pattern, but was later day
accretion due to may internal and external reasons. In the course of time it gradually
hardened into a rigid framework based upon heredity. Inevitably, it gave rise to
gradation and put a premium on snobbery. Thus came into being social hierarchy and
stratification resulting in perpetration of injustices by the so called on the lower castes.
This necessitated a programme for the reconstruction and transformation of a medieval
hierarchical society emphasising inequality, into a modern egalitarian society based on
individual achievement and equal opportunities for all regardless one’s caste race, or
religion. This was evidently the intent of India’s protective discrimination programme.

4. Post-Independence India : A New Beginning.

157[126]
Verinder Grover; Political Thinkers of India, Deep & Deep Publications, New Delhi, 1998.
Proud of India’s rich and varied heritage, but pained at the prevailing social evils
of caste

system etc, the founding fathers of Indian Constitution were aware of the entrenched
and cumulative nature of group inequalities and therefore constitutional policies were
designed to offset these entrenched discriminatory practices. Thus independent India
came to embrace equality as a cardinal value against the background of elaborate,
valued and clearly perceived inequalities158[127]. The result has been an array of
programmes that are termed here as policy of Protective or compensatory
Discrimination. In fact the measures for ensuring equal protection of laws involve the
element of protection as well as that of compensation or reparation to offset the
systematic and cumulative deprivations suffered by lower castes in the past. These
protective discrimination policies are authorised by constitutional provisions, that permit
departures from norms of equality, such as merit, evenhandedness and indifference to
ascriptive characteristics.159[128]

These array of protective discrimination programmes can roughly be divided into three
broad categories. First are Reservations which allot or facilitate access to valued
positions or resources; such as reservations in legislatures, including the reservations
for Scheduled castes and scheduled tribes in Lok Sabha ( House of the People; the
lower house of Indian Parliament), 160[129] reservations in government services and
reservations in educational institutions. Second type of protective measures are
employed though less frequently in land allotment, housing and other scarce resources
like, scholarships, grants loans and health care etc. Third type of protective measures
are specific kinds of action plans for removal of untouchability, prohibition of forced
labour etc. Interestingly few in independent India, would voice the disagreement with the
proposition that the disadvantaged sections of the population deserve and need special
help, there is no public defence for the caste system, everyone is against untouchability.
However there have been controversies galore on a number of issues who really
deserve this help and how long ? What kind of a help it should be and what is the
efficacy and propriety of this help ? Reservation in jobs and government services and in
educational institutions has been the focus of these controversies. We take these three

158[127]
Marc Gallanter, Law and Society in Modern India, Oxford University Press, New Delhi, 1990, P.185.
159[128]
Ibid.
160[129]
Indian Parliament is a Bicameral Legislature. Rajya Sabha is the upper chamber of the Parliament having 250
members elected indirectly for 6 years. Lok Sabha is the lower chamber, consisting of 544 members elected directly
for five years.
types of reservations one by one in this section and try to present the pros and cons of
these protective measures.

4.1. Reservation in Legislative Bodies.

The constitution of India treats the scheduled castes and scheduled tribes in India with
special favour and affords them with some valuable safeguards. The scheduled castes
are depressed sections of the Hindus who have suffered for long under social
handicaps and thus need special protection and help for the amelioration of their social
economic and political conditions. Scheduled tribes also known as ab-origines, are
those backward sections of Indian population who still observe their tribal ways, their
own peculiar customs and cultural norms. The tribal people have remained backward
because of the fact that they live in inaccessible forests and hilly regions and have thus
been cut off from the main currents of national life. 161[130] These scheduled tribes people
too need special provisions for safeguarding their interests. The main problem
concerning these people is that their socio-economic conditions be improved at such a
pace and in such a way as not to disturbe suddenly their social organisation and way of
living. The need is to evolve ways and means to gradually adjust the tribal population to
changed conditions and integrate them slowly in general life of the country without
undue and hasty disruption of their way of living.

For the purpose of providing protection in terms of political representation, article 330 of
Indian Constitution provides that seats in proportions to the population of scheduled
castes and scheduled tribes in particular states are reserved in the Lok Sabha. The
states which are predominantly tribal are excluded from the operation of article 330.
Earlier section 2 of 23rd amendement of the constitution 1969, excluded the operation of
article 330 to the tribal areas of Nagaland , but the exclusion has now been extended in
respect of the state of Meghalaya, Mizoram and Arunachal Pradesh by 31rst
amendment Act as these states are predominantly tribal in nature. 162[131] Similarly under
article 332, seats are reserved in the legislative assemblies of the states in favour of
scheduled castes and scheduled tribes in proportion of their population in that particular
state. Once again the state of Meghalaya, Nagaland, Mizoram and Arunachal Pradesh
are excluded from the operation of article 332, simply because of the predominant tribal

161[130]
M.P.Jain, Indian Constitutional law, Wadhwa and Co Nagpur, 1997.
162[131]
V.N.Shukla, Constitutional law of India, Eastern Book Company Lucknow, 1990.
population in those states. Article 331 and 333 does the same in favour of members of
Anglo-Indian Community.

It is obvious that reservations of seats in Lok Sabha and legislative assemblies of the
States in favour of scheduled castes and scheduled tribes is for the purpose of ensuring
presence of minimum number of representatives of scheduled castes and scheduled
tribes in the legislative bodies. As such if the members of said categories are able to
secure additional seats there shall not be any repugnancy to these provisions at all. 163
[132]
The claim of eligibility for reserved seats does not exclude the claim for the general
seat. It is an additional claim obtainable by way of merit and work.

Elections to the reserved seats are held on the basis of single electoral roll and each
voter in the reserved constituency is entitled to vote. There is no separate electorate. It
is for the scheduled castes and scheduled tribes alone to elect their
representatives164[133]. Thus to elect a person belonging to such castes and tribes to a
reserved seat, all the voters in the constituency have a right to vote. This method has
been adopted with a view to discourage the differentiation of the scheduled castes or
scheduled tribes from other people and to gradually integrate them in the mainstream of
national life.165[134]

It may be noted that initially these reservations were provided for only 10 years from the
commencement of the Constitution under article 334. But this duration has been
extended continuously since then by 10 years each time. Now the period of reservations
in Lok Sabha and State legislative assemblies stands for 60 years from the
commencement of the constitution. 166[135] It is felt that the handicaps and disabilities
under which these people live have not yet been removed and that they need this
reservation for some time more so that their condition may be ameliorated and they may
catch up with the rest of the nation. The number of Lok Sabha seats reserved in a
state of Union territory for such castes and tribes is to bear as nearly as possible the
same proportion to the total number of seats allotted to that state or Union Territory in
163[132]
V.V.Giri v. D. Suri Dora, AIR 1959 SC 1318.
164[133]
M.P.Jain, Indian Constitutional law, Wadhwa and Company Pub, Nagpur, 1997.
165[134]
This has a long history, Mahatma Gandhi has undergone a long fast to protest against the Ramsay Mc Donald
award, for separate electorate in 1932 resulting into Poona Pact, under which it was agreed to have joint electorate
but reservations in legislative bodies. This particular provision was given concrete shape in the Government of India
Act of 1935. See Bipan Chandra, Freedom Struggle. Oxford University Press, New Delhi, 1990.
166[135]
This has been effected vide, 79th Constitutional Amendment Act 1999, brought into force wef.25.1.2000.
the Lok Sabha as the population of the scheduled castes and scheduled tribes in the
concerned state or Union Territory bears to the total population of the state or the union
territory. 167[136]

The fact that reservation of seats for scheduled castes and scheduled tribes in the
legislatures is not on a permanent basis, but is at present provided for 10 years period
at a time, shows that it is envisaged that the scheduled castes and scheduled tribes
would ultimately assimilate themselves fully in the political and national life of the
country so much so that there would be no need for any special safeguards for them
and there would be no need to draw a distinction between one citizen and another.
Their condition would improve so much that they would feel their interests secure
without any kind of reservations.

4.2. Resevation in Jobs (Government Services)

167[136]
Article 330 and 332 of Indian Constitution.
Resevation in government services as a measure of protective discrimination
has been incorporated under article 16 (4) of the Indian Constitution. This
particular provision falls under the head of “ Right to Equality”. In order to
give effect to general right to equality under article 14, the constitution
secures to all citizens a freedom from discrimination on grounds of religion,
race and caste. In the specific application of this equality guarantee; the
State is further forbidden to discriminate against any citizen on grounds of
place of birth, residence, descent, class , language and sex. 168[137]
Untouchability has been abolished and the citizens are protected against
discrimination even on the part of the private persons and institutions. 169[138]
The constitution after guaranteeing the general right of equality under
article 14 defines equality in terms of justice by non discrimination
provisions contained in article 15 (1) and 16 (1) and proceeds to incorporate
provisions of preferential treatment so as to permit the State to achieve
equality to disadvantaged sections by giving them preferential treatment in
all its dealings and particularly in the area of public employment. While
article 16 (1) guarantee equality of opportunity for all citizens in matters of
employment or appointment to any office under the State, article 16 (2)
provides that no citizen shall on grounds only of religion, race , caste, sex,
descent, place of birth, residence or any of them, be ineligible for or
discriminated against in respect of any employment or office under the
State. And article 16 (4) which provides for protective measure of
reservations of seats in government employment lays down, that nothing in
this article shall prevent the state from making any provision for reservation
of appointments or posts 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.

It may be noted that this particular provision of protective discrimination is not intended
to negative or derogatory of the guarantee of equality of article 14 or 15 (1) or 16 (1)
and 16 (2), but is definitive of equality in relation to backward group 170[139]. Thus article
16 (4) should be taken as a clarification that while making classification for favoured
treatment to backward classes the State might use the forbidden criteria, because any
real classification will have to take into account the inequalities based on abuse of
caste, religion, race etc. criteria. Therefore on the one hand, the constitution forbids
discrimination on grounds of race, caste or religion etc, so that the old inequitous

168[137]
Article 15 (1), and 15 (2) of Indian Constitution.
169[138]
Article 17 of the Indian Constitution, also see the Protection of Civil Rights Act 1957.
170[139]
Dr. Parmanand Singh, Equality, Reservation and Discrimination in India, Deep and Deep Publications New
Delhi, 1985
situation may not be continued, on the other hand it permits these very criteria for
correcting evil consequences flowing from their past misuse. This view stands
supported by the cases decided by the Supreme Court according to which the state is
authorised to use caste as an index of social and educational backwardness for making
preferences, of course, subject to the rider that caste, cannot be the sole or dominant
test, although it can be used in conjunction with other relevant consideration like
poverty, occupation , place of habitation etc.171[140]

It is noteworthy that under article 16 (4) reservation in government service can be made
not only at the initial stage of recruitment, but even in the matter of promotion from a
lower to a higher post or cadre. 172[141] Thus selection posts can also be reserved for
backward classes. The expression adequately represented in article 16 (4) imports
considerations of size as well as values. Adequacy of representation of backward
classes in any service has to be judged by reference to numerical as well as qualitative
tests 173[142]. Article 16 (4) neither confers a right on any one nor imposes a
constitutional duty on the government to make a reservation for any one in public
services. It is merely an enabling provision and confers a discretionary power on the
state to reserve appointments in favour of certain classes of citizens. 174[143]

An important point about article 16 (4) is that, this provision permits state to classify
individuals for favoured treatment. Now the point is that classification is possible even
under article 14 itself which inter alia provides for equal protection of laws. In fact Dr.
Ambedkar has suggested a proviso to article 14 that “nothing in this clause shall
prevent the state from making any law for the removal of inequality, disparity,
disadvantage or discrimination arising out of existing law. Had this proviso been
adopted there would have been no need to have provision like article 16 (4), however a
cursory glance at the constituent Assembly debates proves that article 16 (4) was
incorporated by way of an abundant caution 175[144]. Probably the framers did not want to
leave this positive notion of equality as an aspect of justice to the vicissitudes of judicial
attitudes which had been thick with formal equality.

171[140]
M.R.Balaji v. State of Mysore, AIR 1963, SC 649.
172[141]
General Manager S.Rly v. Rangachari, AIR, 1962 SC 36.
173[142]
Ibid.
174[143]
M.R.Balaji, v. State of Mysore, AIR 1963 SC 649.
175[144]
B.Shiva Rao, Making of India’s Constitution, Vol-III.
Despite this level of caution on the part of constitutional framers, the controversy of
formal vs proportional equality equality has not escaped article 16 (4). If one takes the
view of formal equality176[145] which simply requires absence of any discrimination in the
words of law, then formal non discrimination rule in government services has been given
under article 16 (1) and article 16 (4) is simply an exception. And if article 16 (4) is an
exception, then the permissible limit of reservations cannot exceed 49 percent as the
exception cannot override the original provision 177[146]. Further if under formal equality
vision article 16 (4) is taken to be an exception then the state is not authorised to
choose any method for giving favoured treatement to the backward classes in the area
of public employment. Even reservations have to be made subject to the requirement of
article 16 (4) regarding backwardness and under-representation of the preferred
groups. Article 16 (4) read by itself rules out other possible ways of encouraging the
backward classes in the state employment. 178[147] For instance it is unclear whether the
preferential rules such as waiver of age requirement, application of fees and minimum
educational qualifications, special coaching and training programmes are included
within the power under article 16 (4). Apparently these preferences are not reservations
in the strict sense of the term.179[148]

If on the other hand a broader notion of proportional or substantive equality is adopted

16 (4) would not be an exception but an explanation of article 16 (1), and this vision of
article 16 (4) would enable the state in making exceptional provisions for the purpose of
benefitting the backward classes. For example if 16 (4) is to be an explantion of 16 (1)
then 16 (4) would not be controlled by 16 (1) and quantum of reservations under article
16 (4) is not required to be contained within 50 percent limit.

For long it had been the view that article 16 (4) is an exception of article 16 (1) and as
such the claims of backward classes could be projected only through the exceptional
clauses and not outside them. 180[149] The departure from equality could be permitted only
to the extent mentioned in clause 4 of article 16. This clause could not be read as
completely excluding or ignoring the rights of other citizens. If unlimited reservations

176[145]
Justice Mathews articulated the concept of formal vs numerical equality, in his address to the Evening Faculty
of Law, University of Delhi, on 25th Jan 1975. This was a Symposium on the Consitution of India, entitled
“Fundamental Rights and Distributive Justice”.
177[146]
M.R.Balaji, v. State of Mysore, AIR, 1963 SC 649.
178[147]
Ibid.
179[148]
Dr. Parmanand Singh, Equality, Reservation and Discrimination in India, Deep & Deep Publications, New
Delhi, 1985.
180[149]
P.Sagar, v. State of Andhra Pradesh, AIR, 1968 AP 166.
were permissible , this would have the effect of effacing the guarantee contained in
equality provisions.181[150]

But in Thomas 182[151]decision the Supreme Court by majority rejected the notion that
article 16 (4) is an exception or proviso to article 16 (1). The Court majority held that
article 16 (4) is merely an illustration of article 16 (1) and as such is not controlled by
article 16 (1). The result is that the state is not confined only to the method of
reservations for encouraging the backward groups in the area of public employment; it
is free to choose any means to achieve equality of opportunity for these backward
classes. This also meant that quantum of reservations is not necessarily to be within
50percent limits. This case involved the validity of a scheme showing favour to the
scheduled castes and tribes employees by exempting them from the necessity of
passing the departmental test for promotion in services. The circumstances leading to
the scheme were something like this. It was brought to the notice of government of
Kerala that a large number of government servants belonging to the scheduled castes
and tribes were unable to get their promotions from lower division clerks in the
registration department. In order to give relief to the backward classes of citizens, the
government incorporated rule 13 AA under the Kerala State and subordinate services
Rules 1958 enabling the government to grant exceptions to the scheduled castes and
scheduled tribes employees for a period of two years from passing the necessary tests.
As a result of this rule , thirty four out of fifty one posts were filled up by members of
scheduled castes and tribes without passing the test. N.M.Thomas, a lower division
clerk, was not pomoted despite his passing the test. He questioned the rule 13 AA as
violative of article 16 (1) and not saved by article 16 (4). The Kerala High Court declared
the impugned rule invalid under article 16 (1). The impugned scheme resulting in
promotion of over sixty percent of employees of the preferred group was held to be
excessive and not conducive to the administrative efficiency. 183[152]

However the Supreme Court on appeal upheld the rule by saying that article 16 (1)
permits reasonable classification just as article 14 does and as such the state could
adopt any method under the former article to ensure adequate representation of the
scheduled castes and tribes in public services. The majority further held that equality of
opportunity in matters of employment demanded favoured treatment to enable the
weakest elements to compete with the advanced. Justice Krishna Iyer observed, “ To

181[150]
Devadasan v. Union of India, 1964 (4) SCR 680.
182[151]
State of Keral v. N.M.Thomas, (1976) 2 SCC 310.
183[152]
H.M.Seervai, Constitutional law of India, N.M.Tripathi Bombay, 1993.
my mind, this sub article i.e. article 16 (4) serves not as an exception but as an
emphatic statement, one mode of reconciling the claims of backward people and the
opportunity for free competition the forward sections are ordinarily entitled to …. True, it
may be loosely said that article 16 (4) is an exception but closely examined, it is an
illustration of constitutionally sanctified classification. Article 16 (4) need not be a saving
clause but put in due to the over anxiety of the draftsmen to make matters clear beyond
possibility of doubt”184[153].

It has been noted that from the very beginning the general explanation given by the
supreme Court was that article 16 (4) was an exception of article 16 (1). The
implication of this ruling was that since article 16 (4) was an exception and could not
eat away the general rule of article 16 (1) the quantum of reservations could not exceed
50 percent. This proposition was forcefully expounded in Devadasan’s case 185[154]. It was
laid down that a proviso or an exception cannot be so interpreted as to nullify or to
destroy the main provisions and therefore the reservations for backward classes should
not be so excessive as to create a monopoly or to destroy unduly the legitimate claims
of other communities. Reservations of more than 50 percent of vacancies per se were
held to be destructive of the rule of equality of opportunity. 186[155]The object of the
provision under article 16 (4) was to ensure that the backwardness of the backward
classes did not unduly handicap their members from securing public employment under
the state and when the reservation was so excessive in character as to deny in practice
a reasonable opportunity to other classes it was a fraud on the constitution. But this
ruling was overturned in Thomas decision and now article 16 (4) is not an exception but
an explanation or instance or illustration and as such 50 percent can not be the outer
limit of the reservations.

This view of article 16 (4) has been endorsed in Indira Sawhney v. Union of India 187[156]. It
has been held that Equality postulated under the Constitution is not merely legal but real
equality. Holding article 16 (4) to be an explanation of 16 (1), justice Sawant has
rationalised that equality of opportunity has to be distinguished from equality of results.
Various provisions of constitution show that right to equality is not a formal right or a
vacuous declaration, it is a positive right and the state is under an obligation to
undertake measures to make it real or effectual. A caveat has however been posted by
184[153]
In fact Justice Krishna Iyer qoted Justice Subba Rao’s dissenting judgement from Devadasan v. Union of
India,without mentioning the fact that this was dissenting judgment.
185[154]
Devadasan v. Union of India, (1964) 4 SCR 680.
186[155]
Ibid.
187[156]
Indira Sawhney v. Union of India, AIR 1993, SC. 477.
Justice Sahai, who had emphasised that “ reservations being negative in content to the
right of equality guaranteed to every citizen by article 16 (1), it has to be tested against
positive right of a citizen and is a direct restriction on state power. Judicial review , thus
instead of being ruled out or restricted, is imperative to maintain the balance. The court
has a constitutional obligation to examine if the foundations of state’s action was within
constitutional periphery and even if it was, did the government prior to embarking upon
solving the social problem by raising narrow bridge under article 16 (4) to enable the
weaker sections of the people to cross the rubicon discharged its duty of a responsible
government by constitutional method so as to put it beyond any scrutiny by the eye and
ear of the constitution.188[157]

4.3. Reservations in Educational Institutions.

Provisions for reservations in educational institutions to deprived sections of scheduled

castes and scheduled tribes has been secured under article 15(4). Article 15 (1)
specifically bars the state from discriminating against any citizen, race, caste, sex, place
of birth or any of them. Article 15 (4) on the other hand lays down that the state is not
prevented from making any special provision for the advancement of any socially and
educationally backward classes.. The expression “making any special provision” is
evidently an open ended provision and government can really go on providing a whole
array of facilities for promoting the interests of socially and educationally backward
classes, for example waiver of fees, waiver of age requirements, special coachings,
scholarships, grants, loans etc. Interestingly, however, the use of article 15 (4) has
exclusively been made so far for providing reservations in educational institutions.

The two most contentious issues about providing reservations in educational institutions
for scheduled castes and scheduled tribes is ,(1) Determination of backward class
status and (2) extent or quantum of reservations. Determination of socially and
educationally backward class status is not a simple matter as sociological and economic
considerations come into play in evolving proper criteria for its determination 189[158].
Article 15(4) lays down the criteria to designate backward classes, it leaves the matter

188[157]
Ibid.
189[158]
M.P.Jain, Indian Constitutional Law, Wadhwa and Company, Nagpur, 1997.
to the state to specify backward classes. Article 340 contemplates appointment of a
commission to investigate the conditions of socially and educationally backward classes
and such other matters as are referred to the commission. Article 341 provides that the
President may by notification in a particular state; after due consultations with governor
in a particular state specify the castes, races or tribes which shall for the purpose of this
constitution be deemed to be scheduled castes in relation to that state. The second
clause of this article provides the list of scheduled castes specified in the notification
issued under scheduled tribes. However it may be noted that the courts are not
precluded from from going into the questions whether the criteria used by the state for
the purpose are relevant or not. 190[159]

The question of defining backward classes has been considered by the Supreme Court
in a number of cases.191[160] On the whole the courts’ approach has been that state
resources are limited; protection to one group affects the constitutional rights of other
citizens maintained in public services because it is implicit in the very idea of reservation
that a less meritorious person is being preferred to a more meritorious person. The
court also seeks to guard against the perpetuation of the caste system in India and the
inclusion of advance classes within the term backward classes. From several judicial
prounouncements concerning the definition of backward classes, several propositions
emerge. First the backwadness envisaged by article 15 (4) is both social and
educational and not either social or educational. 192[161] This means that a class to be
identified as backward should be both socially and educationally backward. Secondly,
poverty alone cannot be the test of backwardness in India because by and large people
are poor and therefore, large sections of population would fall under the backward
category and thus the whole object of reservation would be frustrated. 193[162] Thirdly
backwardness should be comparable , though not exactly similar to scheduled castes
and scheduled tribes. Fourthly, castes may be a relevant factor to define backwardness,
but it cannot be the sole or even the dominant criterion 194[163]. If classification for social
backwardness were to be based solely on caste, then the caste system would be
perpetuated in the Indian society. Also this test would break down in relation to those
sections of society which do not recognise caste in the conventional sense as known to
the Hindu society. Fifthly, poverty, occupations, place of habitation, all contribute to
backwardness and such factors cannot be ignored. Sixthly, backwardness may be
defined without any reference to caste. As the Supreme court has emphasised 195[164]
190[159]
Moosa v. Kerala, AIR 1960, Ker 355.
191[160]
See D.N.Chanchala v. State of Mysore, AIR 1971, SC 839.
192[161]
State of Andhra Pradesh v. P.Sagar, AIR 1968 SC 1367.
193[162]
Pradip Tondon v. State of U.P. AIR 1982.
194[163]
D.N.Chanchala, v. State of Mysore, AIR 1971 SC 1762.
195[164]
Indira Sawhney v. Union of India, AIR 1993 SC 477.
Article 15 (4) does not speak of castes, but only speaks of classes, and that caste and
clas are not synonymous. Therefore exclusion of caste to ascertain backwardness does
not vitiate classification if it satisfies other tests.

Second most contentious issue as has been noted above is the quantum of
reservations which has become a knotty socio-political issue of the day . Because of
keen competition for limited opportunities available in the country, governments are
pressurised to indulge in all kinds of reservations for all kinds of groups apart from the
reservations for scheduled castes and scheduled tribes and backward classes.
Basically any reservations is discriminatory for reservation means that as between two
candidates of equal merits, the candidate belonging to the reserve quota is preferred to
the one having no reserve quota. Many deserving candidates thus feel frustrated
because of reservations for the less deserving persons and they seek to challenge the
scheme of reservations as unconstitutional.

Till Thomas196[165] case, the Supreme Court decisions on article 15 (4) had held that
this article was an exception and that speaking generally, reservations should be less
than 50 percent. In Devadasan’s 197[166]case, the majority held that reservation should be
less than 50 percent. However in Thomas decision this long held position was reversed
and 15 (4) and 16 (4) as well held to be not an exception but an illustration of 15 (1) and
16 (1) the effect of which was that since 15 (4) is just and illustration of 15 (1), 15 (4)
would not be controlled by 15 (1) and as such the quantum of reservations could go
beyond 50 percent. The rationale of such a turn around was articulated by Justice
Krishna Iyer, “The expression, ‘nothing in this article’ is a legislative device to express
its intention in a most emphatic way that of the power conferred thereunder is not limited
in any way by the main provision 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”.198[167]

This Theory of legislative device is not tenable and can be criticised on a number of
counts. H.M.Seervai, lists the following criticism.

196[165]
State of Kerala v. N.M.Thomas, AIR 1976 SC 490.
197[166]
Devadasan v. Union of India, 1964 (4) SCR 680.
198[167]
Justice Krishna Iyer, supra f.n. 80.
1. It ignores the scheme of article 15 and 16 and more particularly the relation of
clauses (1) and (2) of article 15 and 16, to clauses (3) and (4) of article 15 and to
clauses (3), (4) and (5) of article 16 respectively

2. It ignores the fact that the words ‘nothing in this article’ appear as the opening
words not only in article 16 (4) but also in article 15 (3) and (4) and in
article 16 (3) and (5) and in those four sub clauses the opening words are not a
legislative device.

3. It ignores the fact that it is impossible to argue that clauses (3) and (4) of article 15

and clauses (3) and (5) of article were inserted, ex majore Cautela.

4 It ignores the legislative history of article 16 (4) which shows that 16 (4) was an
exception of article 16 (1).

5. It ignore the decisions of high authority which show that the words ‘nothing in this
Act’ or ‘nothing in this article’ are apt words for introducing exceptions.

6. When the passage propounding the theory of a legislative device is examined it

will be found that it is difficult to give the words in the passage a rational meaning
and at any rate the theory leads to absurd results. 199[168]

It may be added in favour of the ibid argument that sub article 15 (1) and 15 (4) are
parts of article 15 which appears under the group heading ‘right to equality’. A plain
rerading of sub articles 15(1) and 15 (2) show that they confer fundamental rights.
Article 15 (1) confers a fundamental right on every citizen by commanding the state not
to discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them. If any action of the state violates a citizen’s fundamental right under
199[168]
Constitutional law of India, H.M.Seervai, N.M.Tripathi, Bombay, 1993.
article 15 (1), then article 13 declares such action to be pro tanto void, and article 32
and 226 give him a speedy and effective remedy against the state for the protection of
his fundamental rights. Article 15 (2) is directed not only to the state but also to any
person and it provides that no citizens shall, on the prohibited grounds, be subject to
any disability, liability, restriction or condition with regard to the matters set out in sub
clauses (a) and (b) of article 15 (2). In the present discussion we are not concerned with
sub article 15 (2) except is so far as it reflects the scheme of article 15, namely, that
sub article 15 (1) and (2) confer legally enforceable fundamental right. Article 15 (3)
does not confer any right much less a fundamental right on women and children but
merely confers a discretionary power on the state to make special provisions for them.
Article 15 (4), with which we are directly concerned, again confers no right much less a
fundamental right, on any socially and educationally backward class of citizens or on the
scheduled castes and scheduled tribes, but merely confers a discretionary power on the
state to make any special provision for the advancement of aforesaid classes 200[169]. It
would evidently be an absurdity if the part which confers merely a discretionary power
is given primacy over the part which confers a fundamental right enforceable directly in
the highest court of the land.

Evidently if article 15 (1) stood alone, no discrimination could be made for example in
favour of scheduled castes , first, because discrimination on the ground of caste is
prohibited by article 15 (1), and scheduled castes are castes. In any event
discrimination on the ground of religion is also prohibited by article 15 (1) and
scheduled castes are based on religion, because no one can be deemed to be a
member of scheduled castes if he does not profess the Hindu or Sikh religion. Therefore
article 15 (4) takes out discrimination in favour of scheduled castes from the prohibition
against discrimination on the grounds of caste or religion. But in a section or an article,
a later provision which takes something out of an earlier provision, is recognised to be
an exception because, but for the exception, its subject matter would fall within the
earlier provision. Secondly this subordination of sub article 15 (4) to article 15 (1) is
further strengthened by the fact that sub article 15 (1) confers legally enforceable
fundamental right and sub article 15 (4) confers no right at all. And in this scheme of
things a sub article conferring no right but conferring a mere discretionary power on the
state is put on a higher plane than the one which confres a fundamental right. This
conclusion can further be tested in another way. If article 15 (1) were repealed,
because, then article 15 (4) must fall with it or stand impliedly repealed because, apart
from article15 (1) there is nothing in the constitution which prevents the state from
making a special provision for the advancement of the classes mentioned in article 15
(4). The above analysis of article 15 supports the view consistently taken by the
200[169]
H.M.Seervai, ibid. p.557.
Supreme Court prior to Thomas decision, with the consequences that the permissible
limit of reservations could not exceed the limit of 50 percent.

N.M.Thomas decision which has been noted above in detail holds that 15 (4) and 16
(4) are not exceptions , then what is the relation of article 15 (1) and 15 (4), must be
ascertained. Can it be said that sub article 15 (4) is the dominant article and 15 (1) is
subordinate sub article ? To ask this questions is to answer it in the negative. For a sub
article which confers no right but a discretionary power, cannot be described as
occupying a dominant or primary position over an enforceable fundamental right. But if
sub article 15 (4) cannot be treated as the dominant provision can the two sub articles
be treated as indepndent of each other ? the answer is “no”. First because artcle 15 (4)
opens with the words “ Nothing in this article shall prevent the state…” which shows
that article 15 (4) is in some way related to or connected with article 15 (1). Secondly
the statement that sub article (1) and subarticle (4) are independent of each other leads
to an internal contradiction and to an absurd result. For to say that sub article 15 (1) is
not in any way affected by sub article 15 (4) and vice versa. This means that a citizen
can enforce his fundamental right against the state regardless of what is contained in
sub article 15 (4). Equally that the state can exercise its discretionary power under
article 15 (4) regardless of what is contained in sub article 15 (1). This leads to the self
contradictory and absurd result that a citizen cannot exercise his fundamental right not
to be discriminated against on the ground of caste or religions if the state can
discriminate against him on the ground of caste and religion in favour of scheduled
castes. And similarly the state cannot exercise its discretionary power to discriminate
against a citizen, the citizen has a fundamental right under article 15 (1) not to be so
discriminated against. Therefore it follows that the two sub articles are not
independent. There is no third alternative which would describe the relation of article
15 (1) and 15 (4) unless it is said that article 15 (4) has been enacted ex majore
cautela, that is by way of abundant caution. But to say this is to say that sub article 15
(4) was not necessary and that the result would have been the same even if it had not
been enacted or was struck out. But if the terms of sub article 15 (4) were struck out,
the state would have no power to make special provision for the advancement of the
classes mentioned in article 15 (4), because such a provision would violate the
prohibition of article 15 (1).

It has to be noted that since every reservation is a permission of discrimination in

reverse the quantum or the extent of reservation assumes great importance for the
citizen, for the public generally and for the state as well. An instructive illustration of
such a case can be found in a number of cases occurring almost every year where
candidates who have scored as low as 20 percent marks are admitted into coveted
courses and those who have scored above 60 or even 70 percent marks are left out
simply because they happened to belong to forward castes 201[170]. Such left out
candidates would naturally feel a deep sense of resentment and injustice at being
passed over in favour of candidates who have scored very low in entrance test. On the
other hand those who gets admission into such courses are not able to make through
the relevant courses for a number of years and prove to be drain for the state’s scarce
resources. The injury to the public is that they have to deal with a less able public
servant and for the state it is a less efficient public service. These facts do not disappear
because it is said that to redress a great historical wrong done to a section of Hindu
society the individual must put up with the feeling of resentment and injustice and the
public and the state must put up with a less efficient public service at least for a
reasonable period of time.

It was for the purpose of avoiding this contingency of getting the inefficiency introduced
in the services that article 335 was provided in the Constitution of India, which laid down
that the claim of the members of the scheduled castes and the scheduled tribes shall be
taken into consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in connection with
affairs of the union or the states. Supreme Court in a rather recent case has taken note
of article 335 in the interpretation of article 15 (4) and has ruled that selection for the
post graduate course in Medical sciences should be inconsistent with article 335, as
these entrants occupy posts in teaching Hospitals. The element of public interest in
having the most meritorious students is also present at the stage of post graduate level
in medical specialities like superspecialities. Those who have specialised medical
knowledge in their chosen branch are able to treat better and more effectively. Patients
who are sent to the hospitals are treated by these students who enroll for such
speciality courses. At this level an ability to assimilate and acquire special knowledge is
required. Therefore selection of the right calibre of the students is essential in the public
interests at the level of specialised postgraduate education. In view of this supervening
public interest which has to be balanced against the social equity of providing some
opportunities to the backwards who are not able to qualify on the basis of marks
obtained by them for post graduate learning. It is also for an expert body such as the
medical council of India, to lay down the extent of reservations. Lowering of the marks,
if any, are to be consistent with the broader public interest in having the most
competent people for specialised training and the competing public interest in securing
social justice and equality.
201[170]
Jan-Satta, 13th June, 1994, New Delhi.
It has been stated above that the expression under article 15 (4) “Any special provision
for the advancement of ….” Is an open ended and very wide provision. It is unfortunate
that it has not been utilised for other purposes. The underlying assumption of the
interpretation of article 15 (4) so far appears to be that unless posts, including
promotional posts are reserved for backward classes in public employment, their status
can never be improved. It cannot be said that there are no other methods to consider
by which that status can be improved because to say this is to overlook the wide scope
of article 15 (4). The language of article 15 (4) shows first that reservations as such are
not expressly mentioned in article 15 (4), but fall within the wide expression “special
provisions for the advancement of…” It is overlooked that special provisions include
every kind of assistance which can be given to backward classes and scheduled castes
and scheduled tribes to make them stand on their feet or as is commonly said to bring
them into the mainstream of Indian life. Illustratively those measures would include
grant of land either free or on nominal rent the supply of seeds and agricultural
implements, the supply of expert advice as to how to improve the yield of land,
provisions for marketing the produce and the like 202[171]. Those measures would also
include schemes for training the backward classes to pursue trades or small business
which would fetch a reasonable income. In relation to education itself, under article 15
(4) the state can give free education, free text books free uniforms and subsistence
allowance, merit scholarships and the like, starting from the stage of primary education
and going right up to University and post graduate education. Once this is realised, how
vast and varied are the powers at the disposal of the state it if really takes care to
improve the lot of scheduled castes and scheduled tribes, and backward classes, the
controversies of reservations, of preferring less meritorious to the more meritorious one,
or of impairing the efficiency of administration for the purpose of providing protective
discrimination, which more often than not are accused to be governed by political
considerations shall lose much of their shine.

4.4. Preferences in Resource Distribution.

The Preamble to the Indian Constitution of India, has enjoined the “sovereign, socialist,
secular203[172], democratic Republic of India, to secure to all its citizens, social economic
and political justice”. Political justice is ensured by reserving seats and ensuring a
202[171]
Dr. Parmanand Singh, Equality, reservations and discrimination in India, Deep & Deep Publications New
Delhi, 1985.
203[172]
The word Secular was added in to the Preamble by 42nd Amendment, 1975.
minimum representation to deprived and exploited sections of society in the legislatures
and other political bodies. 204[173]Social and economic justice is intended to be achieved
by the state in pursuance of the Directive Principles of state policy contained in chapter
IV of the Constitution, which command the state to remove existing socio-economic
inequalities by special measures. All these provisions are intended to promote the
constitutional scheme to secure equality. These provisions set forth a programme for the
reconstruction and transformation of Indian Society by a firm commitment to raise the
sunken status of the pathetically neglected and disadvantaged sections of our society.
Before we note how the reconstruction and transformation of Indian society is intended
to be realised, it must be noted that the provisions included in Directive Principles of
State policy are not enforceable in the courts, however the principles laid down in this
part of the Constitution are fundamental in the governance of the country.

These provisions may better be described as the active obligations of the state 205[174].
The State shall secure a social order in which social, economic and political justice
shall inform all the institutions of national life. 206[175] Wealth and its source of production
shall not be concentrated in the hands of the few but shall be distributed so as to
subserve the common good. And there shall be adequate means of livelihood for all and
equal pay for equal work. 207[176]The state shall endeavour to secure the health and
strength of workers, the right to work, to education and to assistance in cases of want,
just and humane conditions of work and living wage for workers 208[177]a uniform civil
code209[178], and free and compulsory education for children. 210[179] The state shall take
steps to organise village panchayats, 211[180] promote the educational and economic
interests of the weaker sections of the people, raise the level of nutrition and standards
of living, improve public health, organise agricultural and animal husbandry, 212[181]
separate the judiciary from executive 213[182]and promote international peace and
security.214[183] Article 46 which specifically refers to the obligation of the state towards
the weaker sections and scheduled castes and scheduled tribes etc provides that “The
state shall promote with special care the educational and economic interests of the

204[173]
See Articles 330 to 334 of Indian Constitution.
205[174]
V.N. Shukla, Constitutional Law of India, Easern Book Company, Lucknow, 1990.
206[175]
Article 38 of Indian Constitution.
207[176]
Article 39 of Indian Constitution.
208[177]
Article 41, 42 and 43 of the Constitution.
209[178]
Article 44 .
210[179]
Article 45.
211[180]
Article 40.
212[181]
Article 47 and 48.
213[182]
Article 50.
214[183]
Article 51.
weaker sections of the people, and in particular of the scheduled castes and scheduled
tribes and shall protect them from social injustices and all forms of exploitation”.

In pursuance of these directives , various land re-distribution and allotment

programmes have been initiated. In fact so great was the enthusiasm of the government
in this particular respect that hundreds of land reform laws were passed in the first five
years of Indian Republic. This ensued a spate of litigation in the courts, as the land
reforms laws infringed the right to property of the land owners. 215[184] However the
government was so determined to effect land reforms that the right to property which
was provided under article 31 of the constitution was modified six times and finally
was done away with for the purpose of avoiding litigation in land reform measures of the
government216[185].

For the purpose of providing legal aid to the poor and indigent a vast network of legal
aid programmes involving judicial officers, Bar Councils and law Schools, have been
established all over the country. Legal Services Authority Act, 1987 which was meant to
provide legal aid to all those who cannot afford access to legal services either due to
poverty indigence or illiteracy or backwardness, has been a big success and apart from
legal services authorities at the central and state level various legal aid committees
have been successfully and effectively working at the district and taluka level.

Apart from this various health care programmes such as primary health centres all over
the country have been established and various scholarships grants, loans etc for the
deprived sections of the population have been contributing their bit towards the socio-
economic transformation of the country. These distributive schemes are accompanied
by efforts to protect the backward classes from exploitation and victimisation.

4.5. Action Plans and Amelioration Programmes.

215[184]
See Kameshwar Singh v. State of Bihar, AIR, 1962, SC 1116.
216[185]
44rth Constitutional Amendment Act of 1978 abolished the Right to Property from Indian Constitution.
In the third group of preferential policies aimed at protective discrimination are various
action plans for the removal of incapabilities on the part of the underprivileged groups.
Constitution itself talks about prohibitions of forced labour under article 23, in
pursuance of which Bonded Labour Abolition Act was passed in 1976. In recent years
there have been strenuous efforts to release the victims of debt bondage, who are
mostly from scheduled castes and scheduled tribes. Anti-untouchability programme is
another area of governmental concern. Constitution itself abolished untouchability vide
article 17 which lays down that “ Untouchability is abolished and its practice in any form
is forbidden. The enforcement of any disability arising out of untouchability shall be an
offence, punishable in accordance with law. It is noticeable that the word
“Untouchability” is not to be construed in its literal sense which would include persons
who are treated as untouchables either temporarily or otherwise for various reasons,
such as their suffering from an epidemic contagious disease or on account of social
observance such as are associated with birth or death etc. On the other hand
Untouchability is to be understood in the sense of a practice as it has developed
historically in India. The word refers to those regarded as untouchables in the course of
historical developments in this country.

Anti-untouchability propaganda and the Protection of Civil Rights Act, attempts to

relieve untouchables from the social disabilities under which they have suffered. These
measures may not strictly be called compensatory discrimination in the formal sense of
the term, but in substance it is special undertaking to remedy the disadvantaged
position of the untouchables.

5. General Observations.

It may be summed up by way of general observations that the present model of

compensatory discrimination policies presents a very perplexing conundrum, which can
be said to be sui generis. In such a system nothing can remain sans controversies.
However an impartial observer of the Indian scene may not have difficulty in concluding
that the contemporary discrimination policies have vigorously been followed in post
independent India. And they have produced a substantial redistributive effects as well.
Reserved seats provide a substantial legislative presence and swell the flow of
patronage, attention and favourable policies to scheduled castes and scheduled tribes.
The reservation in jobs and educational institutions has given to a sizable portion of the
beneficiary group earnings, and the security, information, patronage and prestige that
goes with government job in India. However this has not gone without costs. In fact the
costs have been enormous. Lot of frustration amongst those who have been deprived
off the jobs, which they would have got in the absence of preferential policies,
undermining the efficiency of administration, underlining the differences and leading
invidious discriminations, making the beneficiary groups dependent and blunting their
development and initiative etc could be said to be costs of these preferential policies.
The criticism that these policies have evoked and the debates that take place in India
today, represent the vivacity of the Indian Civilisation, wherein the advantages and
disadvantages, hopes and frustrations are indisolubly bound to one another, and
connects the past with the future with an unbreakable continuity of the present.

XXXXXXXXXXXXXXX
CHAPTER-IV

Equality and Affirmative Action Programme in U.S.A.

We have seen in chapter II , how the equality and justice was viewed and administered
in Ancient India and how the well thought out socio-political strategies got distorted and
rigidified resulting into deprivation of a whole section of the population. This
necessitated a protective action programme as an equalising measure repairing the
deprivations and injustices of the past. 217[186] That’s how we concluded in the last chapter
that the roots of our present lie deeply buried in the past and that the justifications of
such protective measures cannot be properly examined without looking into the past
history of any system. The affirmative action programmes or benign discrimination in
United States of America too have a definite history. Not only that these programmes
have been adopted and justified due to a definite past, a past of deprivations and
inhuman treatment of a whole section of the population, but they have had a definite
evolution as well. Starting with the depraved slave system, to the civil Rights movement-
a horrendous civil war, and adoption of fourteenth amendement; developing of the
policy of “separate but equal” doctrine and the disegregation measures, finally evolving
into a full fledged protective action programme, American benign discrimination has a
chequered history. This chapter shall make an attempt to look into this history and then
evaluate the policy perspective and the philosophic debates that formuate the present
benign discrimination programme of America’s socio-political governance, thus
preparing the grounds for some useful comparative conclusions.

1. A Peep into the History of Slave system.

217[186]
M.P.Jain, Legal And Constitutional History of India, N.M.Tripathi, (P) Ltd Bombay, 1990.
As far as we know American continent had no contact with Europe and Asia until the
discovery of the new world in the late 16 th century.218[187] There are no accounts of any
effective contact of this distant and different world which remained uninfluenced by the
happenings in Europe and Asia. With the discovery of the new land there started the
influx of Europeans into the American continent. “Mayflower” was the first ship that took
a batch of Protestants, that came to be known as “Piligrim Fathers”, from England in
1620.219[188] They did not like the autocracy of James I , nor did they like his religion. So
these people since then called the “Piligrim Fathers” shook the dust of England from off
their feet and went to the strange new land across the Atlantic Ocean, 220[189] to found a
colony where they would have greater freedom. They landed in the north and called the
place New Plymouth. Colonists had gone before them to other parts of the North
American coastline. Many others follwed them, till there were little colonies dotted all
over the east coast from north to south. There were catholic colonies, and colonies
founded by cavalier nobles from England, and Quaker colonies- Pennsylvania is named
after the Quaker Penn. There were also Dutchmen and Germans and Danes and some
French men. They were a mixed lot.

By the late 17th century, large tobacco and cotton plantations had developed in the
Southern America, for which there was a big demand of labour. The Red Indians, who
once inhabited the whole continent, were basically nomads and did not like to settle
down. They also refused to work under the conditions of slavery. They would not bend,
rather they preferred to be broken and broken they were in the subsequent years. They
were either exterminated or died off under the new conditions. 221[190] Therefore the
demand of the labour was met by the supply of the people of Africa who were captured
in horrible manhunts and sent across the seas in a manner the cruelty of which is
almost beyond belief. Spanish and Portuguese were the dominant partners in the slave
trade; though English too took their full share in this abominable trade. Africans specially
Negroes were hunted and caught like wild beasts and then chained together and
transported to America. It was found That this carrying of Africans to America and
selling them as slaves was a very profitable business. The slave trade grew and was
subsidized as a business chiefly by the English, the Spanish and Portuguese. 222[191]
Special ships slave traders were built with galleries between decks. In these galleries
the unhappy Negroes were made to lie down all chained up, and each couple fettered
together. The voyage across the Atlantic lasted many weeks sometimes months. During
all these weeks and months these Negroes lay in these narrow galleries, shackled
218[187]
Allan Nevins and Henry Steele Commager, A Pocket History fo U.S. (Pocket Book) 1951.
219[188]
Jawahar lal Nehru, Discovery of India, Oxford University press, 1989.
220[189]
Allan Nevins, op cit, f.n.2. Also see J.H.Franklin, From Slavery to Freedom (1974)
221[190]
History of civilization, Arjun Dev NCERT New Delhi, 1986.
222[191]
Jawahar Lal Nehru, Glimses of World History Oxford University press, New Delhi 1989.
together, and all the space that was allowed to each of them was five and half feet long
by sixteen inches wide.

Vast numbers of such slaves died even before they could reach their destinations at
the American Coast.223[192] The early days of the Industrial revolution led to a great
advance in cotton spinning in Lancashire in England, and this led to a demand for more
slaves in the United States, for the cotton plantations of the southern states. These
cotton plantations were rapidly extended, more slaves were brought over from Africa
and every effort was made to breed Negroes. In 1790 there were 697,000 slaves in
America, in 1861, the number rose to 4,000,000. 224[193]

From the very beginning there was great difference between northern and Southern
states. The northern states had taken a lead in Industrial development where the new
big machine Industry spread rapidly. In the South there were large plantations worked
by slave labour. Slavery was legal but in the north it was not popular and had little
importance. The south depended entirely on slave labour. Apart from this the economic
interests of the north and the South were different, and as early as 1830 friction arose
about tariffs and customs duties. Threats of breaking away from the union were made.
The States were jealous of their rights and did not like too much interferences from the
Federal Government. Two parties arose in the country, one favouring State sovereignty,
the other wanting a strong central government. All these points of difference divided the
North and South farther from each other, and where-ever new states were added to the
union, the question arose which side they would support. 225[194]

In the meanwhile anti-slavery movement gathered momentum in the north under the
leadership of William Lloyd Garrison. The election of Abraham Lincoln was a signal for
the South to break away.226[195] Despite Lincoln’s all efforts to avoid civil war, even his
assurances that he would respect slavery where-ever it existed, 11 States of the South
broke away, calling themselves Confederate States and war ensued in 1861. After four
long years of civil war slavery was abolished and the Negroes were given full rights as
citizens and this was made part of the United State’s Constitution, in the form of

223[192]
Vidyaratna Swami Nair, History of America, Prakashan Kendra, Aminabad, Lucknow, 1977.
224[193]
Jawaharlal Nehru, op cit f.n.6.
225[194]
Allan Nevin,op cit f.n. 2.
226[195]
Ibid.
fourteenth amendment. It was also laid down that no state could dis-enfrenchise a man
on account of his race, colour or previous slavery.

This did not break the travails of blacks. Despite abolition of the slavery system and
fourteenth amendment rights to all citizens the discrimination against Negroes
continued well into mid 20th century. Everywhere they were segregated and kept apart
from the whites in hotels, restaurants, churches, colleges, parks , bathing beaches,
trams and even in stores. In railways they had to travel in special carriages, called “jim
crow cars”. Marriages between whites and Negroes were forbidden. 227[196] The State of
Virginia had passed a law as late as 1926 prohibiting while and coloured persons, from
sitting on the same floor. There were innumerable number of cases, even in the ninteen
thirties and fourties, wherein the areas, having scarcity of labour, Negroes were sent to
prisons, on trumped up charges, and convict labour was leased out to the contractors.

2. Towards Equality.

One of the main ideas that went into the formulation of fourteenth amendment was that
the States defeated in war should be deprived constitutionally of their power to
discriminate against the emancipated blacks and their white protectors. 228[197] The Acts of
1866 and 1870, guaranteed equality of legal status and voting rights against state
action, the Act of 1875, placed the right to equal enjoyment of public inns, conveyances
and amusements regardless of race within the protection of federal law. “Equal
Protection” expressed the desire to lift that great and good law, above the reach of
political strife. This also envisaged the abolition of all class legislations in the states and
to do away with the injustices of subjecting one class to a code not applicable to
another.

Interestingly, however, the Supreme Court refused to construe the fourteenth

amendment as altering the existing design of federalism. 229[198] In denying the application
of the equal protection clause to the Louisiana butchering monopoly, Justice Miller
doubted that the equal protection clause could have any application except in cases
227[196]
Arjun Dev, History of Civilization NCERT New Delhi 1986.
228[197]
Bernard Schwartz, American Constitutional Law, 1976.
229[198]
Hall v. Decuir, 95 US 485 (1878) and Slaughter House cases.
involving the rights of blacks. But when in 1883 the court was confronted with
congressional legislation, guaranteeing equal protection of the laws to blacks, it balked
at giving the clause positive meaning. 230[199] By reading the first and fifth sections of
Fourteenth Amendment to mean merely that Congress could pass legislation to
supersede discriminatory state legislation and official acts ( a power similar to that of
judicial review), it preserved the existing federal system at the expense of implementing
the principle of “Equal Protection” of laws. The persistent question, however for the
states was, what would be an acceptable legal principle to support the policy of holding
blacks in their former status. And the answer was found in the formula of “Separate but
equal” which got the final approval of the Supreme Court in Plessey v. Ferguson. 231[200]
Justice Brown, articulated the majority opinion that the fallacy of the (Negroe) plaintiff’s
argument consisted in his assumption that the enforced separation of the two races
stamps the coloured race with a badge of inferiority. If this be so, it is not because of the
reason of anything found in the act, but solely because the coloured race chooses to put
that construction upon it..232[201] This was certainly an astounding formulation of
Fourteenth Amendment, which was disented by Justice Harlan who insisted that the
“Law was colour blind”.233[202] It may be noted that though the opinion of justice Harlan
has the touch of progressivism, it however fell far short of the modern ideals of the
Principles of Equality. It was not until the late 1930s that the court began to give serious
attention to equality requirement. In 1938, the Court invalidated a law under which
Gaines, a black applicant, was refused admission to the School of law, of the State
University of Missouri.234[203] Missouri made funds available to Gaines and other qualified
black applicants to finance their legal education in schools of adjacent states that
offered unsegregated educational facilities, and argued that by this action it was
meeting the separate but equal requirement. Chief Justice Hughes, for the majority of
seven, disposed of the state’s contention emphatically, “The basic consideration is not
as to what sort of opportunities other states provide, or whether they are as good as
those in Missouri, but as to what opportunities Misssouri itself furnishes to white
students and denies to negroes solely upon the ground of colour. The admissibility of
laws separating the races in the enjoyment of privileges afforded by the state rests
wholly upon the equality of the privileges which the laws give to the separated groups
within the state. 235[204] That Obligation is imposed by the constitution upon the states
severally as governmental entities- each responsible to its own laws establishing the
rights and duties of persons within its borders. It is an obligation the burden of which
cannot be cast by one state upon another, and no state can be excused from
performance by what another state may do or fail to do. That separate responsibility of
230[199]
Mason and Beany, American Constitutional Law, Prentice Hall Inc Englewood Cliffs, New Jeresy USA. 1978.
231[200]
163 US 537 (1886)
232[201]
Ibid
233[202]
Dissenting Judgement of Justice Harlan in Plessey v. Ferguson, op cit f.n. 15.
234[203]
Missouri ex rel Gains v. Canada, 305 US 337.
235[204]
Ibid.
each State within its own sphere is of the esssence of statehood maintained under our
dual system.

3. Death of “Separate But Equal” Doctrine & Protective Discrimination.

Around 1945-50 a group of cases heralded the impending death of the “separate but
Equal doctrine”. The case of Sweatt v. Painter,236[205] was highly significant. In this case
the applicant , who had been denied the admission to the University of Texas Law
School solely on the basis of colour claimed that the instruction available in the newly
established law School for blacks was markedly inferior to the instruction at the
University, and that equal protection of laws was thus denied. In a unanimous decision
the Supreme Court ordered his admission to the white School, indicating that it was
virtually impossible in practice, at least in professional education, for a state to comply
with the separate but equal formula.

Following this the National Association for the Avancement of Coloured people and
other organisations pressed the fight against segregation in public schools. Finally it
was in may 1954 that the famous Brown v. Board of Education 237[206]ruling came. The
unanimous opinion of the Court articulated by Justice Warren, declared that in the field
of Public Education the Doctrine of “Separate but Equal” has no place. Separate
Educational facilities are inherently unequal. Earlier decisions had eroded the
constitutional foundations of the “separate but equal” formula to the vanishing point. Nor
did the historical evidence, furnished at the Court’s request and available to it in briefs
of counsel, influence the decision. In approaching this problem, said the Chief Justice,
“we cannot turn the clock back to 1868, when the Amendment was adopted, or even to

236[205]
339 US 629 (1950)
237[206]
347 US 483 (1954)
1896, when Plessy v. Ferguson238[207] was written. We must consider public education in
the light of its full development and its present place in American life throughout the
nation.

Brown v. Board of Education,239[208] sounded the death knell for all racial segregation- at
least where the requirement of state action is met. Brown is based upon the categorical
finding that segregation must involve discrimination, regardless of the tangible factors,
involved in the separate facilities provided. That is inevitably true of any and all
segregation. After all, everyone knows that the purpose of segregation is not to exclude
white persons from the facilities used by Negroes, but to exclude coloured people from
those used by whites. The post Brown decisions strike down all forms of segregation in
publicly operated facilities, public buildings, public housing, eating facilities and
hospitals and other health facilities. 240[209] It is no longer open to question that a state
may not constitutionally require segregation of public facilities. Failure to comply with
the disegregation demand cannot be justified by the mere fact that officials seem it
necessary to prevent interracial disturbances, violence, riots, and community confusion
and turmoil.241[210] The compelling answer to this contention is that constitutional rights
may not be denied simply because of hostility to their assertion or exercise. 242[211]
Important as is the preservation of public order it cannot be accomplished by the
depriving of Negroe children of their constitutional right. 243[212]

Thus came to be established the “Right to Equal Protection” for all without distinction as
to race, colour, and ethnic origin etc. Shorn of all its contextual interpretations of 14 th
Amendment , the “Equal Protection” clause providing that “All persons born or
naturalised in the United States and subject to the jurisdiction thereof are citizens of
U.S. and States wherein they reside. No State shall make or enforce any law which
shall abridge the privilege and immunities of citizens of U.S. nor shall any state deprive
any person of life, liberty or property, without due process of laws, nor deny to any
person within its jurisdiction the equal protection of laws”, means exactly what it says in
so far as its application is concerned . Its language applies to every person within State
jurisdiction without regard to accidents of sex, birth, or fortune. Unless words are

238[207]
163 US 573 (1896)
239[208]
ibid f.n. 21.
240[209]
Gaffin v. Maryland, 378 US 130 (1964), Watson v. Mephis, 373 US 526 (1963) State Atletic Comm’n v.
Dorsay 359 US 533 (1959) Gayle v. Browder 352 US 903 (1956)
241[210]
Wright v. Georgia 373 US 284 (1963)
242[211]
Watson v. Memphis , Ibid f.n. 24.
243[212]
Cooper v. Aaron 358 US (1958)
deprived of their ordinary meaning, it includes every human being irrespective of
citizenship, sex or race- as well as artificial persons such as corporations. 244[213]
However, as has been noted that despite its existence in the United States’ Constitution
for around a century, there have been discriminations of most invidious kind and the
interpretation of this clause has changed from time to time for example, at one time
Fourteenth Amendment was quoted as supporting the “separate but equal” 245[214]
doctrine. Historical data were cited to show that segregated school systems were in
existence when Fourtheenth Amendment was adopted and the advocates of
Amendment had not questioned their constitutionality. 246[215] However, beginning most
notably with the Supreme Court’s condemnation of school segregation in 1954, the
United States Supreme Court has finally begun to correct the discrepancy between its
ideals and its treatment of the blackman. The first step as reflected in the decisions of
the courts and the civil rights laws of Congress, 247[216] merely removed the legal and
quasi legal forms of discrimination. These actions while not producing true equality or
even equality of opportunity logically dictated the next step; positive use of
governmental power to create possibility of real equality. This is how the language used
in “Equal Protection” clause expressed in the individualistic terms came to be used to
defend a group, the blacks and by an activist Supreme Court. This very language came
to be interpreted as designed to defend the rights of Chinese, Japanese, Mexican
Americans, Celtic Irishmen, Indians, aliens and many others. 248[217] By 1964, the United
States witnessed the emergence of busing to achieve racial balance , quotas in
employment and public housing and inclusionary admission standards for colleges and
universities. These developoments signified the relevance of race as a factor to achieve
actual equality for Negroes and other disadvantaged groups. 249[218]

It may be noted that today “equal Protection” clause as well as the Civil Rights Act has
come to be viewed as mandating affirmative action programme using racial
classifications. But those affected by affirmative action programmes have begun to
fashion the weapon of equal protection clause as a shield for the argument that race
cannot be a factor in affirmative action programmes. The opponents of these

244[213]
Bernard Schwartz, American Constitutional Law, (19760
245[214]
Plessey v. Ferguson, 163 US 537 ( 1896).
246[215]
John W Davis, appearing on behlf of states presented the historical data to press his claims. Also see Mason
and Beaney American constitutional Law, prentic Hall Inc Englewood Cliffs New Jeresy 1978.
247[216]
Civil Rights Act, of 1964 specifically title VI and VII of the said Act.
248[217]
Yick Wo v. Hopkins 118 US 356 : Bayside fish flour co v. Gentry 297 US 422 : (1936) Patsone v.
Pennsylvania 232 US 138 : Terrace v. Thompson 263 US 197 (1923) : Takahashi v. Fishgame Commission 334 US
410 (1948)
249[218]
See Robert O’Niel Discriminating against discrimination and Zimmy Beyond Defunis :Disproportionate
impact analysis and madated preference in law school admissions 54 NCL Review 317 (1976)
programmes have begun to call such measures as discrimination in reverse. 250[219] The
Statement that American Constitution is colour blind, expressed in Justice Harlan’s
dissent in Plessey’s case has come to be claimed as the law of the land. Why should a
white care how many Negroes are there as doctors, lawyers or professors ? He should
be considered on his own merits. If a Negroe cannot be discriminated against on
grounds of race neither can a white be discriminated against on ground of race. The
Constitution is colour blind, it was argued. Justice demanded equality without regard to
colour and special treatment for Negroes meant recognising colour just when the
forward movement of history was turning towards obliteration of colour as a factor in the
areas of life. The equalitarian guarantees of the Constitution accrued to the individuals
and not to groups.

These competing arguments against and in favour of benign racial discrimination

reached their acme in the case of Regents of University of California v. Allan Bakke,251
[220]
and later in the United Steel Workers of America v. Weber.252[221] Interestingly,
however, neither Bakke nor the Weber case has decided finally the question of
constitutionality of racial quota, system. These cases, however, have brought into focus,
the entire range of issues, involved in preferential action policies. Before we have a look
at the range of issues, involved and discussed in these cases, let us have a look at the
facts of Bakke’s case. Allan Bakke, a white male who applied for admission to the
University of California Medical School at Davis, was denied admission twice, claimed
his individual right to adminssion on a non-discriminatory basis. He complained that he
was denied admission precisely because Davis had reserved 16 percent of its places
for minority applicants and only 84 percent of the places were open for those belonging
to the majority community. The minority applicants could however compete for all the
one hundred places. The trial court found in favour of Bakke, and ordered the Davis
School to admit him. The California Supreme Court struck down the Davis’ special
admission programme as violative of equal protection clause. It ruled that race can
never be used as a factor in admission programmes. The University appealed to the
United States Supreme Court.

250[219]
Dr Parmanand singh, Equality, Reservations and Discrimination in India, Deep and Deep Publications New
Delhi, 1985.
251[220]
438 US 265 57 L.Ed 2nd 570.
252[221]
99 Supreme Court Report 2721 (1979), For an analysis of Weber case se O.N Fiss “The Supreme court 1978
term: A foreword 93 Harvard Law Review (1979) and Ronald Dworkin’s How to read civil Rights Act, in Taking
Rights Seriously, Harvard Univesity Press, 1997.
The Supreme Court was equally divided on the issue. Out of nine Justices who
participated in the proceedings, four justices considered the case on narrow statutory
grounds and held that Title VI of Civil Rights Act 1964 mandated “colour blind”
approach. Whether race can ever be a factor in admission programmes is not the issue,
rather, they held that Allan Bakke was excluded because of his race. This was
impermissible . Out of five who considered the issue on Constitutional grounds, one
Justice, i.e. Justice Powell held that both the equal protection clause and Title VI were
designed to protect the individuals right to equality, regardless of race, colour or skin.
He held that race could be a factor in admission programme provided that none was
excluded. While deciding this Justice Powell had in mind the Harvard School kind of a
flexible programme, that do not set target numbers for minority students. Rather it
aimes at diversity in the student body. They recognise that racial diversity is as
important as geographical diversity or diversity in extracurricular talents and career
ambitions, and so take race into account in such a way that the fact that an applicant is
black may tip the balance in his favour just as the fact that another applicant is an
accomplished flutist may tip the balance in his.

Remedial use of race could be made only when appropriate finding of past or present
discrimination had been made by judicial, legislative or administrative agency.
Voluntary use of racial classifications was impermissible. He held that in no case had
the court upheld voluntary use of race conscious remedy as the one adopted by Davis.
And in earlier cases where remedial use of race was upheld none was excluded from
the State benefits. In none of the earlier cases one individual was preferred at the
expense of another. Justice Powell therefore concluded that racial and ethnic distinction
of any sort are inherently suspect and thus call for an exacting judicial scrutiny. He
conceded that the state had a legitimate interest in ameliorating or eliminating the
disabling effects of of identified discrimination but this could be achieved not by
favouring some persons perceived as members of relatively victimised group at the
expense of other innocent individuals in the absence of judicial legislative or
administrative finding of constitutional and statutory violations. However the goal of
having a diverse student body was constitutionally persmissible but racial quotas were
not the least onerous or least intrusive methods to achieve the goal of having a diverse
student body. Justice Powell indicated that a more flexible approach based on
individualised treatment adopted in Harvard Law School was lawful method to achieve
the goal of having diverse student body.
Thus four justices who decided Allan Bakke’s claim on narrow statutory grounds and
Justice Powell who decided his claim both on Statutory and constitutional grounds
formed the majority affirming the judgement of the California Supreme Court in so far as
it held that Allan Bakke was entitled to admission because he had been discriminated
against on ground of race or colour. As such Allan Bakke won beccause five justices
thought that he should win on some grounds even though they disagreed on which
grounds.

There was another question, whether the race can ever be taken into account in
admission programmes. The four justices who considered the issue on narrow statutory
grounds had concluded that Title VI of the Civil Rights Act of 1964 mandated “colour
blind” approach and whether race can ever be taken into account for such benign
discrimination programmes was not the issue required to be considered on
Constitutional grounds. On this particular question Justice Powell , who decided the
issue both on statutory and constitutional grounds joined the other four, in upholding
the proposition that race could be so used. These five judges thus formed the majority
for the proposition that racial classification is not per se invalid.

The other four judges whose opinion on racial classifications was most emphatically
articulated by Justice Brennan, held that those racial classifications are suspect which
impose unfair burdens on the disadvantaged groups or saddled them with disabilities or
relegate them to a position of political powerlessness as to command extraordinary
protection from majoritarian political process. These justices held that the Davis
programme had not discriminated against whites who had no special history of past
discrimination. Whites were not stigmatized or disabled by preference given to the
Negroes and other historically disadvantaged groups. These justices believed that both
the Fourteenth Amendment and the Civil Rights legislation mandated preferential
treatment. Voluntary use of race for remedying the effects of past societal
discrimination was both constitutionally required and desired. Justice Blackman said
that to end racial discrimination race had to be taken into account. These justices were
all agreed that to treat some persons equally, they have to be treated unequally for
equal treatment of unequals is probably the worst and most pernicious kind of
inequality.253[222]

253[222]
D.D.Basu, Shorter constitution of India, Wadhawa Publishers Nagpur, 1997.
The standard of review applicable in gender discrimination cases was applied for
reviewing the benign discrimination cases and the test formulated by these Justices was
that a racial classification designed to further remedial purposes, must serve important
government objectives and must be substantially related to achievement of those
objectives”. Applying this standard of review they held that Davis’ articulated purpose of
remedying the effects of the past discrimination was substantially important to justify the
use of race conscious admission programme where there was a sound basis for
concluding that minority under –representation was substantial and chronic and that the
handicaps of the past discrimination impeded access of minorities to the medical
school. The aim of Davis was to remove the disparate racial impact. Davis programme
did not violate equal protection clause. A legislative, judicial or executive determination
of past discrimination was not a condition precedent for remedial use of race. Equal
Protection clause could not be so interpreted as to perpetuate racial supremacy.

Justice Marshall observed that quotas were implicit in preferential policies. Preferences
were already there for veterans and children of alumni etc. All these preferences
excluded others. Justice Marshall traced the history of racial discrimination in America
and concluded that a university could employ race conscious measures to remedy past
societal discrimination without the need for a finding that those benefited were actually
victims of that discrimination. It was too ironical, he said , that after several hundred
years of group based discrimination against Negroes the Court was unwilling to hold
that a class based remedy was permissible. He remarked that in declining to so hold,
“Today’s judgement ignores the fact that for several hundred years Negroes have been
discriminated against, not as individuals, but rather solely because of the colour of their
skin. It was unnecessary in 20th century America ho have individual Negroes
demonstrate that they have been victims of racial discrimination”. And he concluded
that “this court in Civil Rights cases and Plessey v. Ferguson 254[223] destroyed the
movement toward complete equality. For almost a century no action was taken and
this non action was with the tacit apporals of the Court. Then we had Brown v. Board of
Education 255[224]and the Civil Rights Act of the Congress, followed by numerous
affirmative action programme. Now we have this court again stepping in this time to stop
affirmative action programme of the type used by the university of California”.

Thus, though Allan Bakke did get the remedy in terms of getting admission in Davis
medical Programme, however the questions as to whether racial quota is permitted by

254[223]
163 US 537 (1896)
255[224]
347 US 483 (1954)
“Equal Protection” clause was left unresolved. The other important case which came
before the Supreme Court was that of United Steel Workers of America v. Weber.256[225]
Bakke tested the affirmative action programme in Univertisties and professional
schools. But Weber tested the legality of programmes giving blacks advantages in
training programmes for industry, programmes that would benefit more blacks directly
and might be expected to have an earlier impact on economic racial inequality. Blacks
were seriously underrepresented in the work force of the Kaiser Alunminium company’s
plant in Gramercy, Louisiana, where Brian Weber a white labour was employed. Blacks
held hardly any of the plant’s craft or skilled jobs. Kaiser agreed with its union to
establish a training programme for craft jobs to which current employees would be
admitted in order of seniority, that is in the order in which they had entered the plant—
except that one black employee would be admitted for each white employee until the
number of blacks in skilled jobs formed the same proportion of all skilled workers as
blacks formed of the labour force in the Gramercy area. Weber applied for the
programme, Louisiana, where Weber worked, maintained a seniority list on the basis of
which employees competing for seniority were ranked. Two seniority list were
maintained, one for the whites and the other for blacks. Vacancies were filled
alternately from the top of the two lists. Weber a white employee with about five years
seniority in that plant at that time, was refused admission to three different training
programmes, although, because of the quota plan in force some nonwhites having less
seniority than Weber were admitted. Weber thought that he was not admitted only
because he a was a white. He brought a suit against Kaiser and the Union, on behalf of
himself and all white employees at that plant. Weber argued that Kaiser quota plan
violated Title VII of the Civil Rights Act 1964.

The Supreme Court by a majority of five to two, upheld the racial quota in the allotment
of on the job training opportunities amongst competing employees, instituted by
management union agreement. Justice Brennan who articulated the majority opinion
held that a quota of 50 percent set up by Kaiser Aluminum Corporations (A private
industry) did not violate Title VII of the Civil Rights Act 1964. It was held that the
impugned quota plan was designed to eliminate a manifest racial imbalance . Title VII
did not prohibit private employers from voluntarily adopting racial quotas. Justice
Brennan turning to the legislative history of Title VII and intent of the Congress 257[226] in
enacting the civil Rights Act concluded that the aim of Congress was to remove the
plight of the Negores in America’s economy and Congress really wanted the employers

256[225]
99 Supreme Court Report 2721 (1979)
257[226]
For the analysis of the doctrine of Intention fo Legislature, See Ronald Dworkin, How to read Civil Rights
Act, in Taking Rights Seriously, Harvard University Press 1997.
to act voluntarily to end racial discrimination. The Private employer’s voluntary effort to
correct racial imbalance was, therefore, lawful.

It may be noted that the result reached in Weber is in contrast with that reached in
Bakke. Weber did not present a a constitutional question because the action of private
employers not being a state action is not controlled by fourteenth amendment. Only
governmental agencies must obey the fourteenth amendment guarantee of equal
protection. The result is that although Bakke prohibits racial quota by a state
instrumentality like University of California Medical School at Davis, Weber permits
private racism like the one adopted by a Kaiser aluminum corporation.

It may also be recalled that Bakke decision was indecisive because the four justices
who held that the Davis plan was illegal under Title VI of the Civil Rights Act 1964,
expressed no opinion on whether it was unconstitutional and therefore no explicit
opinion on the underlying issue: the moral issue of the fairness of affirmative action.
Weber however is important because it permitted valuable programmes developed by
Private initiative to go forward. It is true that the Weber was decided on very narrow
statutory grounds, involving an interpretation of one Title of Civil Rights Act 1964, and
does not speak about any constitutional issue. “Nevertheless”, Prof Dworkin 258[227] put it,
“the development of Constitutional law is governed more by the latent moral principles
that are presupposed by a good justifications of Supreme Court decisions than by the
more technical arguments and limitations set out in the discrete opinions. And weber as
such marks a step forward on the part of the judiciary in developing new cocneptions of
equality.

4. Competing Arguments.

This however has not put paid to the controversy as to whether racial quotas are legally
or ethically valid and here we would like to summarise the arguments that are raised in
favour or against the benign discrimination programme. Theoritical underprinnings of
these arguments have been more comprehensively taken up in chapter II, here an

258[227]
Ronald Dworkin, op cit f.n.42.
attempt is made merely to summarise the argument, so as to prepare the ground for
some valuable comparative statement taken up in chapter V.

Those who favour the benign racial discrimination argue that even if such preferences
impose burdens on the members of the excluded groups, they are valid if designed to
promote integration of the larger social system. 259[228] The compensatory treatment is
fully consistent with the values underlying the fourteenth amendment and that such
racial classifications should be tested by reference to the present day social realities
and against the history of civil war amendments. And the current social reality is that
white people as a group have always been more equal than black people.Their
argument is that Brown decision did not hold that all racial classifications are per se
unconstitutional; rather it held that invidious racial classifications i.e. those that
stigmatize a racial group with a stamp of inferiority are un-constitutional. Even Justice
Harlan’s remark in Plessy on the colour blind approach was intended to protect Negroes
from hostile discrimination and not to prevent efforts to overcome such discrimination
and its effects. The majority can be trusted when it discriminates against itself and that
the stigma arising from benign discrimination is far less than that resulting from malign
discrimination.

The second argument is that the continuing and systematic under-representation of

racial and ethnic minorities in the mainstream of American life reduce them into a
discrete self perpetuating racial underclass a condition which is neither desirable nor
consistent with the ideals of American’s representative democracy. The preference for
Negroes will not stigmatize whites. It is the collective interest, governmental as well as
social, in effectively ending unconstitutional discrimination. They argue that racial
preference does not disadvantage a white any more than a veteran preference or a
preference to the disabled and other disparate groups in the society. 260[229] Benign
discrimination has been part of American heritage and the constitutional tradition
requires the courts to allow the legislatures the power to authorise the preferences for
racial and ethnic minorities. The courts should not interdict the attempts to achieve
genuine equality.

259[228]
John hart Ely, the Constitutionality fo Reverse racial Discrimination Ch Law Review 723 (1974), Also see
Robert J Willey “A case for Preferential Admission, Howard Law Journal, 175 (1978).
260[229]
These arguments were more succinctly articulated in De Funis case See The Road Not taken Virginia Law
Review 917 (1974)
Another argument advanced is that the individual claim for equality is based on the
notion that the distribution of goods and services should be on the basis of competence,
merit or desert. But these claims based upon the principle for rewarding efforts and
competences can be countered by the group’s claim for equality. Where there is a need
for rapid and substantial integration of races one’s race can be part of one’s own merit.
Merit can be defined by past performaces and potential achievement, but if past
performance has been disadvantaged by racial prejudice, poverty or segregation, an
evaluation of potential seems much more appropriate. Potential as used here might
include reference to the needs of the society and the society might need favoured
treatment to the disadvantaged groups. Prof. Dworkin, calls the supposed conflict
between desirable social goal and important individual right of being judged on his own
merit, “a piece of intellectual confusion”. He goes on to argue that “There is no
combination of abilities and skills and traits that constitutes merit, in the abstract; if quick
hands count as merit in the case of prospective surgeon, this is because quick hands
will enable him to serve the the public better and for no other reason. If a black skin will
as a matter of regrettable fact, enable another doctor to do a different medical job better,
then that black skin is by the same token merit as well. That argument may strike some
as dangerous; but only because they confuse its conclusion- that black skin may be
socially useful trait in particular circumstances- with the very different and despicable
idea that the one race may be inherently, more worthy than another:.

The opponents on the other hand argue that racial discrimination or preferential policies
utilize and later the distributional practice and effects of existing institutions; they alter
the rules of the competition so that the favoured have more chances of success. Such
policies reduce, efficiency and productivity of administration and destroy standards.

Such policies also unfairly place the burden of helping those who are preferred on those
who are excluded. This is an unfair way of distributing the cost of a legitimate goal. 261[230]
Better qualifications confer upon the holder a prima facie right to be chosen in
preference to any one who is less qualified. The equal protection guarantee and the
Civil Rights Act 1964 both mandate a colour blind approach and as a consequences
cannot abide the race conscious approach. It may be noted that this is same
“Merit”argument which has been noted in Chapter II, and which has been criticised by
Prof Dworkin as a “Piece of Intellectual confusion”.

261[230]
Posner, Defunis case and the Constitutionality of preferential treatment of racial minorities , I SC Review
(1974)
Another very favourite argument of the opponents of preferential policies is that
“Affirmative action programmes should aim at helping the disadvantaged sections of the
society enabling them to catch up to the standards of competition set up by the larger
society. But numerical quotas or reservations are impermissible as they impose unfair
burdens on those excluded and they involve the suspension of standards.
Compensation to the disadvantaged should be made in such a way as not to exclude
anyone.262[231] This argument is similar to the argument advanced by Justice Powell in
the case of Bakke, wherein he supported the flexible protective discrimination
programmes like the one of Harvard University that do not even set target numbers for
minority acceptance. Such programmes are aimed at diversity of student body. They
recognise that racial diversity is as important as geographical diversity or diversity in
extracurricular talents and career ambitions, and so take race into account in such a
way that the fact that an applicant is black may tip the balance in his favour just as the
fact that another applicant is an accomplished flutist may tip the balance in his.

It is true that a flexible programme is likely to be more efficient in the long run, but what
matters for a person excluded because of quota system is the chance this gives him in
the competition and it does not make any difference to him in principle whether his race
is a constant small handicap in the competition for the places or no handicap at all in the
competition for a slightly smaller number of places. His fate depends on how much
either the handicap or the exclusion reduces his overall chances of success. The
handicap and the partial exclusion are only different means of enforcing the same
fundamental classifications.263[232] In principle they effect a white applicant in exactly the
same way , i.e. by reducing his overall chances and neither is, in any important sense
more individualised than the other. The point is not that factually administering a flexible
system may covertly transform it into a quota plan. The point is rather that there is no
difference, from the standpoint of individual rights, between the two systems at all.

This brief review of the competing arguments between those who favour benign
discrimination and those who do not, brings home the point that one can argue the case
equally effectively on either side and that there is no dearth of arguments on either side.
This also brings forth the limitation of the intrumentality of law in social engineering. It
is undeniably a very crude strategy to induce social transformation. The ultimate

262[231]
This argument was put forward by Justice Powell in Allan Bakke Judgment, 438 US 265.
263[232]
What did Bakke really decide? Ronald Dworkin in Takin Rights Seriously, Harvard University Press, 1997.
solution of such vexed issue like benign discrimination, it appears, depends on the
creativity and the goodwill of a social system committed to equality of all citizens. Either
one talks of American society which is remarkably uniform in its individual rights
approach or India which chooses the path of group rights approach, sanctioned by the
Constitution, each has to bear the social tension and unrest which accompany the idea
of benign discrimination. How the two systems respond to this tension and unrest in
differing social settings and structural realities is the question which shall be looked into
in the next chapter, for which stage appears to have been set.

XXXXXXXXXXXX
CHAPTER – V

Evaluations and Conclusions

Equality and quality are two incongruous quantities, but if the Democracy is not to be a
teasing illusion, but humanism in action for underprivileged sections of society, these
quantities are to be so harmonised by social technology as to live in functional
friendliness, and not snarling fretfulness. 264[233] In a Democratic political system every
person from a pauper to a prince has full title to full personhood which includes social
economic and political status and opportunity. For the purpose of realising the fullest
potential of democracy the victims of social injustices of bygone generations in
whichever country they are, are to be provided “Equal Protection of Laws” by special
strategies, hand in hand with equal opportunites to the more privileged and well to do
sections of the population. A modus vivendi between equal opportunities to the
advanced sections of society on the basis of merit and special or protective provisions
for the less privileged has got to be worked out to make the democratic system
functional in the real sense of the term. This is not a one shot affair but an incessant
struggle between two opposing trends which involve so much of social history,
pathological politics and Constitutional law internalised in this type of social engineering.

The essence of equality and justice lies in some kind of a leveling process. It implies the
giving of favoured treatment to those who are governed by unfavourable circumstances
and thus lacking in resources opportunities, incentives and background to achieve
success on terms of formal equality 265[234]. In fact equality is furthered by favouring
competence and by creating a favoured group for redressing rooted inequalities.
Distribution according to merit, desertes, or contribution and distribution according to
need, both are consistent with the essential principles of equality. The need criteria
takes into account the inequalities of men affecting their abilites to contribute to the
society and decides to disperse benefits to the unequals in order to counterbalance
their deficiencies,266[235] weaknesses and inferiority caused due to genetic, environmental

264[233]
Justice Krishna Aiyar, in the foreword to the “Equality, Reservations and Discrimination in India” by Dr.
Parmanand Singh, Deep and Deep Publications New Delhi. 1985.
265[234]
The competing arguments for and against compensatory discrimination have been analysed in Chapter IV,
supra, Also see the introductory chapter for competing arguments.
266[235]
For details see chapter II.
or historical reasons. Redistribution of society’s goods and services in order to remove
or eliminate existing inequalities may ultimately be beneficial to the society as a whole.
Even if compensation involves social costs, imposes burdens on those excluded and
affects the standards and meritocracy, the benefits accruing to the society as a whole
will in the long run outwiegh the costs. The compensatory treatment provides the
beneficiaries an access to the op- portunity structure of the society than they would
have otherwise enjoyed. The preferences promote integration of the disadvantaged
groups into the larger society and promote national development as well.

It may be noted that stipulations of equality and justice in a constitution are often
expressed in the universalistic or individual terms. They do not lay down any particular
or specific concept of equality and justice . In fact the contents have to be poured into
the equality clauses from time to time responding to the currently accepted social
values or norms, established morality or the constitutional goal to achieve equality
overall. This meaning of equality as an aspect of justice is capable of universal
application irrespective of the fact whether the constitutional text of a society defines
broader notions of equality as defined by the Indian Constitution or it uses the language
in the individualistic and universalistic terms as has been done in the constitution of the
United States of America.

With this perspective in mind when we look at the two largest Democracies of the world,
India and United States, their social history and causes of present disparities existing
amongst various sections of society; the way they look at these differences; the way
the provisions for benign discrimination have been framed in their constitutions; the way
they administer these policies of affirmative action, certain interesting conclusions can
be drawn which have great theoretical implications not only to the administration of
these policies in these countries, but also for the democratic functioning and the role of
law in the democratic process. These comparisons and contrasts not only lead to
“Cross Fertilisation” of the ideas, but also to a better understanding of the other. It must
be noted that a Legal System, have a peculiar mix of specificity and immutability on the
one hand and the dynamics of the evolutionary process on the other. Such comparative
conclusions are necessary desiderata of institution’s evolutionary process that shape
the destiny of the human race.

In a democratic order, the state system has the responsibility of ensuring an

environment in which every individual irrespective of his caste and creed, community,
sex, descent or place of birth could find the fullest development. For a balanced
equitable and healthy growth, the individual should have the power to make choices
and in an structurally hierarchical society, this can not happen unless conscious
interventions by the state system, to alter the normal processes and existing patterns,
are made through public action. “ There is nothing as unequal as the equal treatment of
unequals” and therefore the state system has an obligation to take positive steps for the
amelioration of the historically deprived and exploited sections of population. Here an
attempt has been made to compare the two systems, we had discussed in the
preceding pages, to bring out the differences and similarities between the two systems
in their conception, articulation and administration of compensatory discrimination
policies.

1. Social Pathology : Caste and Race.

It has been noted in the preceding pages in an elaborate manner that what we know as
the caste system of India, which has been subjected to second rate denunciations for
so long, was originally known as Varna System and was an arrangement for the
distribution of functions in society 267[236], just as much as class in Europe, but the
principle on which distribution was based in India was peculiar to this country. A brahmin
was a Brahmin not by mere birth but because he discharged the duty of preserving the
spiritual and intellectual elevation of the race, and he had to cultivate the spiritual
temperament and acquire the spiritual training which could alone qualify him for the
task. The Ksatriya was a kshatriya not merely because he was the son of a warrior and
prince, but because he discharged the duty of protecting the country and preserving the
high courage and manhood of the nation, and he had to cultivate the princely
temperament and acquire the strong and lofty samurai traing which alone fitted him for
his duties. So it was with the Vaishya whose function was to amass wealth for the race
and the Sudra who discharged the numbler duties of services without which the other
castes could not perform their share of labour for the common good. 268[237]

In this scheme of things there was no inequality between a devout Brahmin and a
devout Shudra as both of them were essential parts of the single Virat Purush, (the
Cosmic Spirit). Later on the same system was perverted into a machine of exploitation
resulting into deprivations of a large sections of the population. It is the nature of human
institutions to degenerate, to lose their vitality and decay, and the first sign of decay is
the loss of flexibility and oblivion of the essential spirit in which they were conceived.
The spirit of the caste arrogance, exclusiveness and superiority replaced the spirit of the
duty under Varna system, and caste system became the synonym of abominable

267[236]
For details see chapter III.
268[237]
Aurobindo, India’s Rebirth, Institut de recherché evolutive, Paris, 2000.
thraldom and human injustices under which a substantial class of the people had been
groaning for centuries. It was this realism of Indian scene that led to the adoption of
protective discrimination progammes under specific and elaborate provisions of Indian
Constitution.

The racism of the United States vintage, has had a different course altogether. In
constrast to the ideal beginning of Varna system, what one finds in the U.S. system is
abominable slave system, wherein the Negroes in Africa were hunted and caught like
wild beasts chained together and brought over to America. Vast number of such slaves
died even before they could reach their destinations at American coasts. Specific thing
about American slavery was that it was exclusively a Negro slavery. Most of the features
that characterised it were connected with the race and not status. A consistent
overworking, flogging and disruption of families due to sale of slaves were the worst
aspects of it. Frederick, Law Olmsted, visited one of the first rate cotton plantations in
Mississippi. He found a large and handsome mansion; nearly fourteen hundred acres
planted to cotton, corn and other crops; and two hundred hogs. Of the one hundred
thirty five slaves, nearly seventy worked in the fields, three were mechanics and nine
were house of stable servants. They laboured from dawn to dark, with Sundays and
sometimes Saturdays free. In summer the hoe gang thus spent sixteen hours in
plodding labour, with one short interval at noon for rest. The food allowance was a peck
of corn and four pounds of pork apiece each week, supplemented by vegetables, eggs
and poultry grown by the slaves themselves. Every Christmas molasses, coffe, tobacco,
and calico were generously distributed. The Negroes got their own fuel for their little
cabins from a wooded swamp, where on Sundays they buy small comforts.

This was a plantation of better sort, Olmsted found plantations where slavery was
harsher and more brutish. The lot of indigenous people, which Americans called Red
Indians (or simply Indians) was no better. Basically nomads these indigenous people
refused to work under the conditions of slavery. And in the subsequent years they were
literally wiped out. The Civil Rights movements of 19 th century created an awareness
about the Rights of these people and the civil war and subsequently 13 th and 14th
amendments completely changed their status at least in legal terms. In the later half of
20th century benign discrimination kind of a thing was read into the 14 th amendment and
protective provisions enforced for the upliftment of these exploited sections of the
U.S.population.269[238]

The contrasts between the social history of benign discrimination in India and U.S.A. are
so obvious. In one, the beginning was an ideal one, in the other the very start of the
social system was abominable and depraved. While in India, there was little inequality in
terms of principles at least, in as much as the people belonging to fourth Varna were
269[238]
For details see chapter IV.
considered as part of the whole, in U.S. the Church continued to debate well into 20 th
century whether the blacks and Indians have souls at all ? In the perverted caste
system people were exploited in the name of religion, as their conditions were attributed
to their ‘Prarabdha’ or destiny, in U.S. the slave system was justified in economic terms,
being beneficial to both the masters and slaves, as it protected the workers in
unemployment, sickness and the old age, making masters chivalrous and the slaves
loyal and Christianised the heathen people and gradually elevated them. 270[239] The
perpetrators of injustices under the caste system were the people of their own kind,
(belonging to the same race) in U.S.A. the perpetrators of injustices under the slave
system were a different race.

2. Benign Discrimination Provisions.

Indian Constitution drafted in mid 20 th century has clear cut provisions for social justice
and benign discrimination. The Preamble makes explicit in bold letters, the resolve of
the system to constitute India into a “socialist and democratic Republic”, with a view to
securing , inter alia, social economic and political justice, equality, liberty and above all,
dignity of the individual.271[240] Translating these general principles into concrete legal
propositions, part III of the Constitution guarantees certain fundamental rights to the
individual which are not all negative in character but envisage positive state action. .
Among these rights, the right to equality in its various facets, including the authorisation
of the state to take affirmative action for the benefit of the backward classes, 272[241] the
scheduled castes and the scheduled tribes, abolition of untouchability, 273[242] prohibition
of traffic in human beings, and prohibition of employment of children in facotries 274[243]
are clearly representative of egalitarian as opposed to meritarian concept.

A similar kind of a concept with greater vigour and clarity has been expressed in the
directive principles of state policy contained in part IV. The directives in no uncertain
terms require the state, inter alia to promote the welfare of the people by securing and
protecting a social order in which justice, social economic and political, should inform all
the institutions of national life, to rduce economic disparities, to make available
adequate means of livelihood; to distribute the ownership and control of material
resources so as to subserved the common good; to operate the economic system in
such a way that it does not result in the concentration of wealth and means of
production275[244] to the common detriment; to protect health and strength of workers and
children of tender age against abuse; to provide for legal assistance and aid, to provide
270[239]
Allan Nevins and Henry Steele Commager, Pocket History of America 1959.
271[240]
Preamble to the Indian constitution, 1950.
272[241]
Article 14, 15 and 16 of the Indian Constitution.
273[242]
Art 17.
274[243]
Article 23 and 24.
275[244]
Article 38.
right to work, to education and to public assistance in cases of unemployment, old age,
sickness and diablement and in other cases of undeserved want; to secure just and
humane conditions of work and provision of maternity relief; to provide for living wages
and conditions of work ensuring decent standard of life and full enjoyment of leisure and
social and cultural opportunities; to promote with special care the educational and
economic interests of weaker sections of the people and their protection from social
injustice and all forms of exploitation; and to raise the level of nutrition and standard of
living and public health.276[245] These principles can be enforced notwithstanding the
general right to equality in article 14 and right to the six freedoms under article 19 of the
Indian Constitution.

There are also provisions to ensure due representation of the weaker sections
(scheduled castes and scheduled tribes) in Parliament and state legislators through
reservations of seats.277[246] It also directs for their induction into state services and
provides special administrative safeguards for them. A backward class commission to
make recommendations for improving the conditions of the backward classes and a
commission to report on the administration of scheduled areas have also been
conceived in the Constitutional text. Special provisions have also been made for such
minorities as Anglo Indians.

In the U.S. , on the other hand the Fourteenth amendment provides that “All persons
born or naturalised in the U.S. and subject to the jurisdiction thereof are citizens of U.S.
and states wherein they reside. No state shall make or enforce any law which shall
abridge the privilege and immunities of citizens of U.S., nor shall any state deprive any
person of life, liberty or property, without due process of laws, nor deny to any person
within its jurisdiction the equal protection of laws. The guarantee under this amendment
is aimed at removal of undue favour and individual or class privileges on the one hand
and at the hostile discrimination or oppression on the other. Fifth amendment contains a
due process clause, which seeks the same ends as the equal protection clause.
Equality of right is fundamental in both clauses and each forbids unequal government
action such as class legislation that arbitrarily discriminates against some and favours
others in like circumstances.

276[245]
See Generally the Directive Principles of State Policy.
277[246]
Article 334 of the Indian Constitution.
There is clearly an absence in the United States’ Constitution, of the enabling provisions
like Article 15 (4) and 16 (4) which specially authorise the state to take affirmative action
for elevation of oppressed classes, not to talk of social welfare provisions like the one
enshrined in Directive Principles of State Policy in Part IV of the Indian Constitution. And
this was accepted by Justice Powell in so many words when he remarked that “nothing
in the Constitution supports the notion that individuals may be asked to suffer otherwise
impermissible burdens in order to enhance the societal standing of ethnic groups. He
rejected the argument that the guarantee of equal protection permits the recognition of
special wards entitled to a degree of greater protection than accorded to others. There
is no principle to force an innocent individual to be asked to suffer in order to promote
the welfare of the victims of societal discrimination when such an individual might not be
the actual victimiser. The overall tenor of the Indian Constitution offers much support to
interpret equality as permitting protective discrimination, even at the cost of an
individual’s right, who have not been a victimiser. In U.S. on the other hand, the
Constitution contains no comparable language helpful in deciding whether equal
protection clause permits or proscribes protective discrimination to racial minorities.
The Indian Constitution affirms the economic and educational betterment of the weaker
section of the Indian society whereas no such guideline is supplied in the text of the
U.S. Constitution.

3. Group Right vs. Individual Right.

It has been noted in the preceding pages that in India the express text of the
constitution provides for group rights in so far as it speaks of special provisions for
women and children and for any socially and educationally backward classes of
citizens278[247] or for the scheduled castes and scheduled tribes, reservations of
appointments or post in favour of any backward class of citizen; 279[248] promotion of the
educational and economic interests of the weaker sections of the people and
consideration of the claim of the members of the scheduled castes and scheduled
tribes… in the making of appointments to services and posts. In view of these express
provisions no one can assert that the right to equality is always an individual right.

278[247]
Article 15 (3) and (4).
279[248]
Article16 (4)
In the U.S. on the other hand the language used in the Equal Protection clause can
plausibly be used to defend both, the claims of the individual equality as well as the
claims of the disadvantaged groups. But the whole concept of legal rights has been
developed in the United States in individual terms. And if the equal protection clause is
used to provide justice for the groups by creating a quota or reservation the right of
discriminated against individuals of the excluded groups is said to be violated. In the
United States in the absence of constitutional language used to defend group claims,
(as used in Article 15 (4) and 16 (4) of Indian Constitution), the deprivations of individual
rights on the basis of group characteristics, race, religion, national origin is nevertheless
treated in law as a problem of protecting the rights of an individual. It is not that only the
constitutional and legal language used in the United States, in Fifth, Thirteenth and
Fourteenth amendment, in Civil Rights Act 1964, in Voting Rights Act 1965, is used as
suggestive of a colourblind theory, even the recent philosophical discussions on the
problems of justice ignores the problem of justice for the groups.

The majority opinion in the United States of America, appears to be very uniform on
their individual rights approach. George Gallup, remarked sometime back that from the
Public opinion in today’s America, one finds a striking degree of consensus against
quotas and special preference. Americans support strict adherence to meritocratic
standards but will countenance programmes that help bring the disadvantaged group up
to the level set by those standards. 280[249] It seems however, that there is nothing like an
emerging national consensus that has appeared in America on the permissibility of
quotas. There are competing arguments justifying both the individual and groups rights
approach.

Prof. Dworkin, clearly rejects the group rights approach for the purpose of redressing
past injustices. According to him, “affirmative action programme seems to
encourage….a popular misunderstanding, which is that they assume that racial or
ethnic groups are entitled to proportionate shares of opportunities, so that Italian or
Polish ethnic minorities are in theory as entitled to their proportionate shares as blacks
or Chicanos or American Indians are entitled to the shares the present programms give
them. That is a plain mistake, the programmes are not based on the idea that those who
are aided are entitled to aid, but only the strategic hypothesis that helping them is now

280[249]
Nathan Glazer, “Individual and Group Rights: Is there any way to resolve the conflict” in Human Rights (ed)
Eugene Kamenka and Alice Erhsoon (1978)
an effective way of attacking a national problem, i.e. the problems of racial
consciousness.281[250]

4. Policy vs Rights Approach.

In India the popular perception about benign discrimination, and that has been noted in
the preceding pages, is that, since the scheduled castes, scheduled tribes, or other
backward classes for that matter, have been subjected to all kinds of discrimination for
hundreds of years and that has left them socially and educationally backward. They are
born in unequal conditions and die in those conditions. These lowliest and the lost
people were denied access to wells, temples, schools and other places and asked to
perform unclean and impure tasks without which their very existence and continuance
would have been impossible.282[251] These inhabitants of the less visible area of humanity
were socially oppressed, economically condemned to the live life of the penury and
educationally coerced to learn the family trade or occupation and to take to education
set out to each caste and class by society. An uneven socio-economic landscape hardly
gave them the joy of equal opportunity and development or draw forth their best from
man power resources.

Justice demands that historican deprivations of these people be repaired and special
protective measures be provided to them so as to eliminate their disabilities. So far so
goo. But do they have a right for protective discrimination which can be demanded from
the state as against the so called victimising community ? As regards the Indian
Constitution there is nothing therein, which sanctions such a conclusion. The provisions
for protective discrimination have been held to be enabling provisions . They do not
impose an obligation but merely leaves it to the discretion of the appropriate
government to take suitable action if necessary.

However the case of reverse discrimination during last two decades has been made out
persistently and with increasing intensity in the language of Rights and entitlements.
281[250]
Bakke’s Case, are quotas unfair, in Ronald Dworkin “ A matter of Principle” Harvard University Press, 1985.
282[251]
KPK Shetty, Fundamental Rights and Socio-Economic Justice in Indian constitution, (1969).
This at once raises the temperature of the debate and forces people to adopt
intransigent positions. Understandably, they find it far more difficult to yield on what they
believe, or are led to believe to be matters of right and Justice than they would, on
matters of utility of policy. The persistent use of the language of rights in the public
debate for or against benign discrimination is bound to lead to an increase in the
consciousness of caste and in that way to defeat the basic objectives of affirmative
action which is to reduce and not increase caste consciousness. 283[252] After all how one
can exorcise caste from the public mind by consistently deepening the sense in society
that castes and cammunities are entitled to their separate shares as a matter of right.
Policies unlike rights are not absolutes; they have to be examined in terms of costs
and benefits. We may not always be able to measure these , but that should not
prevent us from trying to form clear judgements about them. Both costs and benefits
should be taken into account in assessing any policy of affirmative action.

There is no doubt that caste continues to operate even today in many spheres of social
life and in some cases with more vigour and perspecuity, but that it does not do as a
matter of right. Its continuance is socio-political life is one thing and its legitimacy is
altogether a different thing. The attempt to invest the caste system with legitimacy by
claiming that its constituent units have rights and entitlements is an attempt to give it
legitimacy and this might in the long run may lead to enormous harm to society and its
institutions.

In United States on the other hand the case for reverse discrimination has consistently
been made out in the name of policy and utility, rather than in the language of rights.
The “quotas for disadvantaged groups are best viewed as matters not of right but of
policy”. The strongest argument in support of reverse discrimination are made not on
grounds of rights and justice but on those of policy and utility. Prof Dworkin rejects
categorically the assumption that racial and ethnic groups are entitled to proportinate
shares of opportunities and adds, that is a plain mistake, the programme are not based
on the idea that those who are aided are entitled to aid, but only on the strategic
hupothesis that helping them is now an effective way of attacking a national problem. 284
[253]
Among other things, adopting a policy oriented approach allows a degree of
freedom and flexibility in the formulation and administration of such programmes.

283[252]
Andre Betielle, Distributive Justice and Institutional Well being, Economic and Political Weekly, Samiksha
Publications, Bombay March 1991.
284[253]
Bakke’s Case: Are quotas unfair, in Ronald Dworkin’s “A Matter of Principle” Harvard University Press 1985.
The philosophic debate that ensued in the wake of DeFunis and later after Bakke’s
judgment make the above point a bit clearer. DeFunis a white applied to the University
of Washington Law School, he was rejected though his test score and college grades
were such that he would have been selected if he had been black. DeFunis claimed that
his rights to equality under Fourteenth Amendment was violated. Prof. Dworkin met the
argument squarely. He maintained that DeFunis has no Constitutional right, that the
state provide him the legal education of a certain quality. Nor does he have a right to
insist that intelligence be exclusive test of admission. Law schools rely on intelligence
test not because people have a right to be tested on intelligence but because it is
reasonable to think that community with intelligent lawyers is better off, that is to say
that intellectual standards are justified not because they reward the clever but because
they serve a useful policy.285[254]

Prof Dworkin sought to differentiate, between ‘Equality as a policy’ and ‘Equality as a

right’. According to him there are two different sorts of rights which a member of a
democratic society deemed to possess, the first is the ‘Right to Equal treatment’ which
is the right to an equal distribution of some opportunity or resources or burden. The
second is the ‘Right to treatment as an equal’, which is the right not to receive the same
distribution of some burden or benefit but to be treated with the same respect and
concern as anyone else. I have two children, one dying from a desease that is making
the other uncomfortable, I do not show equal concern if I flip a coin to decide which
should have the remaining dose of drug.. This example shows that the “Right to Equal
Treatment” is fundamental and “Right to Equality is derivative”. 286[255] He returned to the
same argument sometime later in an essay on Bakke’s case, where a white applicant
had been denied admission to a medical school that had set aside a number of places
for members of educationally and economically disadvantaged minorities. He repeated
the argument that Bakke had no Constitutional right that had been violated by the
medical school, when it denied him a place in the interest of its affirmative action
programme. That programme was good one as it served a useful policy and although it
might cause disappointments or even hardships to the individual, but it did not violate
his constitutional right.

The above argument is no doubt a very convincing one, but Prof. Dworkin makes the
concept of “Equality of Opportunity” to stand on its head when he concludes that the
‘Right to Equal Treatment’ is the principal right and ‘right to equality’ a derivative right. It

285[254]
Taking Rights Seriously, Harvard University press, 1997.
286[255]
Ibid.
is true that sometimes the particular right derived from a general right may be more
important in view of contemporary needs of the society. But that does not make the
derivative right a principal right and a principal right a derivative one. It may be
submitted that in view of contemporary political situation an individual citizen may or
may not have an unqualified right of admission to a medical or law school, on the
grounds of merit, but the principle of “Equality of Opportunity” is certainly a principal
right that we can not afford to devalue. Extension of massive quota in India in the name
of protective discrimination or making reparations for historical injustices is exactly that
kind of a devaluation.

It may be noted in this context, that a similar kind of an argument was used by Indian
Supreme Court in the State of Kerala v. N.M.Thomas, wherein the exception i.e. article
16 (4) was treated as the main provision and the main provision in article 16 (1) just a
derivative principle, thus making the whole concept of equality to stand on its head. The
principal argument have been extensively dealt with elsewhere in this work, however, a
brief review would not be out of place here. Article 16 (1) of Indian Constitution provides
that “There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the state. Article 16 (4) provides that the
State may provide reservations of appointments or post 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. For long it has been the considered opinion of the Supreme
Court of India that article 16 (4) is an exception (i.e. a derivative principle) of the main
provision (i.e. article 16 (1) This meant that the claims of backward classes could be
projected only through the exceptional clause and not out of it. The departure from
equality i.e. from the main principle of “Equality of Opportunity” enshrined under article
16 (1) could be permitted only to the extent mentioned in clause 4 of article 16. This
clause cannot logically be read as completely excluding or ignoring the right of other
citizens. If unlimited reservations were permissible say to the extent of 80 percent that
would have the effect of effacing the principal provision i.e. article 16 (1), giving primacy
to the exception clause and by logic the derivative provision over principal provision.

But in Thomas case, Supreme Court of India rejected this logic and held that article 16
(4) is not an exception but simply an illustration of article 16 (1). As such the state is not
confined on to the method of reservations for encouraging the backward groups in the
area of public employment. It is free to chose any means to achieve equality of
opportunity for these backward classes. Justice Mathew observed, that “Article 16 (4) is
capable of being interepted as an exception of article 16 (1), if the equality of
opportunity visualised in article 16 (1) is sterile one, geared to the concept of numerical
equality which takes no account of the social economic and educational background of
the members of scheduled castes and scheduled tribes. If Equality of opportunity
guaranteed by article 16 (1) means effective material equality, then article 16 (4) is not
an exception to article 16 (1). It is only an emphatic way of putting the extent to which
equality of opportunity could be caused even up to the point of making reservations.”
Elsewhere in the judgement Justice Mathew expressed the opinion that the expression
in article 16 (4) “nothing” is a legislative device to express its intention in almost
exphatic way that the power conferred thereunder is not limited in any way by the main
provisions, but falls outside it, it has not really carved out an exception but has
preserved a power untrammelled by other provisions of the article. One of the logical
consequences of this kind of an interpretation was to hold that though the amount of
reservations should normally not exceed 50 percent, however, since article 16 (4) is not
controlled by 16 (1), the amount of reservations could go beyond 50 percent. This was
said to be the “Positive Equality”.287[256]

The minority opinion was that it was dangerous to authorise the State to give
preferences outside the protective clause. The minority argued that if inroads were
allowed into the equality notion beyond those permissible under the exception clause,
not only that the ideal of merit, efficiency of services and absence of discrimination in
the sphere of public employment would be obvious casualties, but the concept of
equality of opportunity shall also be undermined.

Going back to Prof Dworkin’s argument, it is true that there is no absolute right of merit
and that merit itself is contextual thing, it is also true that there is no absolute right of
merit and tht merit itself is a contextual thing depending on societal circumstances
needs, objectives and policies; but it is also true that merit in absolute sense has been
the hub of civilizations and has been instrumental in the growth and development of
human society. The rapid economic growth that we have achieved is in a large
measure, is the result of this merit alone. American democracy from the very beginning
has generally been meritarian in enterprising in character. The Horatio Alger stories of
rising from rags to riches, the tales of how the west has won by the sheer individual
persistence and determination and accounts of early settlers, their courage and
conviction are all part of the popular lore that most American hold very dear. There has
been Horatio Algers in India as well and that too in millions. The millions of refugees

287[256]
For an incisive critique of Justice Mathew’s argument, see H.M. Seervai, Constitutional Law of India,
N.M.Tripathi, Bombay, 1993.
who crossed over from what is now the territory of Pakistan, without any aid from the
state and within a decade rose to prominence and became the star performers of Indian
economy. It shall be very difficult to found such rags to riches story any where in the
world. They did not ask for sops from the state system in the form of preferential
treatment, but celebrated excellence. An argument against merit tends to put a premium
on inefficiency which propels the individual to look towards the state for succour in times
of crises. This putting of crutches in the hands of individuals tends to perpetuate the
parasitic existence of a whole section of the population while discouraging and marring
the excellence.

5. Concluding Observations .

Going back to our theme of Equality and justice which we had taken up in the
introduction, it may be observed that the human race in its quest of peace and
prosperity and to control its destiny, has always been endeavouring to devise legal
institutions of such character that may ensure a dignified place to every human
individual. While the ancients sought the deliverance of human race in religion and
God, the medieval societies slipped into hierarchical setting of institutions. The advent
of modernity marked a comprehensive change in its outlook and the human race sought
refuge in legal institutions to better its lot. The growing emphasis on justice and human
rights the world over, during recent years, should be seen in this perspective.
Philosophers like Dworkin and Rawls, therefore, have emphasized that the “Right to
equal concern and respect” is the most fundamental of all rights”. The idea of
affirmative action has grown in response to this quest of human race to ensure a
dignified place to every human individual under the sun.

This idea of Affirmative Action and adoption of policies of preferential treatment in India
in the form of Reservations in government services, educational institutions, legislative
bodies etc and in the United States of America, in the form of preferential treatment of
blacks in jobs and educational institutions, embodies the commitment of these societies
to eliminate inequalities of status and invidious treatment. The contents of such policies
differ in the two systems as the differing needs of the socio-economic circumstances
demand. However the basic commitment of quest for just and equal socio-political order
remain the same. The excluded ones due to the emphasis on preferential policies have
raised some very valid objections as has been seen above, however these very
discontents shall prove to be the touchstone for testing the commitment of these
societies towards Justice and Equality.
XXXXXXXXXXXXXXXXXX
List of Cases

1. Akhil Bhartiya Shoshit Karmachari Sangh Rlys v. Union of India,1981 (1) SCC 246.

2. Ashok Kumar Thakur v. State of Bihar, AIR 1996 SC 75.

3. Ajit Singh v. State of Punjab, AIR 1999 SC 3471.

4. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

5. Brown v. Board of Education, 347 US 483 (1954)

6. Chamraja v. State of Mysore, AIR 1967 MYS 21.

7. Chhoteylal v. State of U.P., AIR 1979 ALL 135.

8. Chitra Ghosh v. Union of India AIR 1970 SC 1050.

9. Chitralekha v. State of Mysore, AIR 1964 SC 1823.

10. Dayaram v. State of Haryana , AIR 1974 P & H 270.

11. D.N.Chanchala v. State of Mysore, AIR 1971 SC 1762.

12. Davis b. Board of School Commrs 402 U.S. 33 (1971)

13. DeFunis v. Odegaard, 416 US 312 (1974)

14. Devadasan v. Union of India AIR 1966 SC 179.

15. Douglas v. California 372 U.S. 353 (1963)

16. Fatehchand v. State of Maharashtra, AIR 1977 SC 1825.

17. Frank v. Bowman Transportation company, 434 US 747 (1975)

18. General Manager Southern Railways v. Rangachari, AIR 1962 SC 36.

19. G.Michael v. S Venkateshwar, AIR 1952 Mad 474.

20. Griffin v. Illinois 351 US 92 (1955)

21. Gurinder singh v. State of Punjab, AIR 1974 P & H 125.

22. Hariharan Pillai v. State of Kerala, AIR 1968 Ker 42.

23. Harnandez v. Texas 347 U.S 475 (1954)

24. Inder Prakash v. Dy Commer of Delhi AIR 1979 Del 87.

25. Indira Gandhi v. Rajnarayan, AIR 1975 SC 2279.

26. Indra Sawhney v. Union of India, AIR 1993 SC 477.

27. Indra Sawhney v. Union of India, AIR 2000 SC 498.

28. Jacob Mathew v. v. State of Kerala, AIR 1964 Ker 39.

29. Jagdish Rai v. State of Punjab, AIR 1977 P & H 52.

30. Jagdish Saran v. Union of India , AIR 1980 SC 192.

31. Jaisinghani v. Union of India, AIR 1967 SC 927.

32. Janaki Prasad Parimoo v. State of J.K., AIR 1973 SC 930.

33. J.C.Malik v. Union of India, AIR 1995 SC.

34. Jolly George v. State of Kerala, AIR 1974 Ker 178

35. K.C.Vasanth Kumar v. State of Karanataka, 1985 SCR Suppl 352.

36. Keshavanand Bharati v. State of Kerala, AIR 1973 SC 1461.

37. K.S. Jaishree, v. State of Kerala, AIR 1976 SC 2381.

38. Lau v. Nichols 414 US 563, (1974)

39. M.A.Rasheed v. State of Kerala, AIR 1974 SC 2249.

40. Loving v. Virginia, 388 U.S. 1 (1967).

41. Maneka Gandhi v. Union of India (1978) 1 SCC (248)

42. Minerva Mills v. Union of India, AIR 1980 SC 1789.

43. M.R.Balaji v. State of Mysore, AIR 1963 SC 649.

44. North Carolina State Board of Education,v. Swann 402 US 43.

45. Periakaruppan v. State of Tamilnadu AIR 1971 SC 2303.

46. Plessy v. Ferguson 163 U.S 537 (1896).

47. P.Sagar v. State of Andhra Pradesh, AIR 1968 AP 166.

48. P Sudarshan v. State of M.P. and others, AIR 1958 AP 569

49. Preeti Shrivastava v. State of M.P. And others, (1999) & S CC 120

50. Ramkrishna Singh v. State of Mysore, AIR 1960 Mys., 338.

51. Ramana v. I.A. Authority of India, AIR 1978 SC 1628.

52. Ramesh Chander v. State of Punjab AIR 1966 Punjab, 466.

53. Regents of University of California v. Allan Bakke, 438 U.S. 265, 57 L. Ed. 2 nd 750.

54. Shelley v. Krammer, 334, U.S. 1 (1948)

55. Schlesinger v. Bellard, 419 U.S. 351 (1974)

56. S.H.Partha v. State of Mysore AIR 1961 Mys, 220.

57. Spottswood Thomas Bolling v. Melvin Sharp , 347 U.S. 497.

58. S.R. Bommai v. Union of India AIR 1994 SCC 1.

59. State of Andhra Pradesh .v. U.S. Balram, AIR 1972 SC 1775.

60. State of Jammu and Kashmir v. T.N.Khoza, AIR 1974 SC 1

61. State of Kerala v. N.M.Thomas, AIR 1976 SC 490.

62. State of Madras, v. Champakam Dorairajan, AIR 1951 SC. 226.

63. State of Punjab, v. Hiralal AIR 1971 SC 1777.

64. State Of Punjab v. R.K.Sabharwal and others, Janasatta, 10Feb, 1995.

65. State of U.P. v. Pradip Tondon, AIR 1975 SC 563.

66. Sweatt v. Painter 339, U.S. 629 (1950)

67. Union of India v. Veerpal Singh chauhan, The Hindustan Times , 11oct 1995.

68. United Steele Workers of America v. Weber, 99 SC Report 272 (1979)

69. Washington v. Davis 426 U.S. 229 (1975)

70. Wendy Wygant v. Jackson Board of Education, 476 US 267.

71. Wealth Commissioner of Income tax v. G.S.Rao, AIR 1996 SC 1995.

72. Yick Wo v. Hopkins, 118 U.S. 356 (1886)

XXXXXXXXXXX
 List of Articles and From Journals and periodicals.

1. Agrawal, S.K : Protective Discriminatin for Backward Classes, in India, ,

M.Imam, (Ed) Minorities and the Law, New Delhi, Indian Law Institute, (1972)
2. Agrawal, P.C. and Ashraf, S : Equality Through Privilege, New Delhi, Shriram
Centre for Industrial Relations and Human Resources (1976).
3. Ahmed K : Twoard sEquality, Economic and Political Weekly, Bombay, Jan 1978.
4. Andre Betielle, Distributive Justice and Institutional Well Being, Economic and
Political Weekly, Annual Number, 1991.
5. Amartya Sen, Equality of what ? , in A Companion to Contemporary Political
Philosophy, Blackwell, Oxford, 1995.
6. Bernard Williams, Idea of Equality, in A Companion to Contemporary Political
Philosophy, Blackwell, Oxford, 1995.
7. Bickel, The Original Understanding of the segregation decisions 69, Harvard Law
Review, 1 (1955).
8. Blackshield A.R. : Fundamental Rights and Institutional viability of the Indian
Supreme Court, 8, Journal of the Indian Law Institute, 210 (1966)
9. Bose N.K., Who are backward, classes, Man in India, 34 (2) (1954)
10. Brast P. , Foreword , In Defense of Anti-Discrimination principles, 90 Harvard law
Review, 1 (1976).
11. Dushkin L , Backward Class Benefits and Social Classes, Economic and Political
Weekly, Bombay, April 1979.
12. Ely H. The Constitutionality of Reverse Racial Discrimination, 41, Chicago, Law
Review, (1974)
13. Erickson, Kahn, Ballard and Wiesenfield : A new Equal Protection test in Reverse
Sex Discrimination cases, 42, Brooklyn Law Review 1 (1976).
14. Galanter Marc, Judicial Review of the designation of the Backward Classes, 3
Journal of Indian Law Institute, 459, (1961).
15. Galanter, Marc, Prospective Discrimination for Backwad classes in India, 3
Journal of Indian Law Institute, 39 (1961).
16. Galanter Marc, Who are the other Backward Classes ? An Introduction to a
constitutional puzzle, Economic and Political Weekly, Bombay, Oct 1978.
17. Ghouse, M, Judicial Control of Protective Discrimination, 11, Journal of Indian
law Institute, (1969)
18. Gupta R.K. Justice Unequal but Inseparate, 11, Journal of Indian Law Institute,
57 (1969).
19. Imam M., Reservations of seats for Backward Classes, in Public Services and
Educational Institutions, Journal of Indian Law Institute, 44 (1966).
20. Kaplan, Equal Justice in Unequal world: Equality for the Negroe, 61,
Northwestern University Law Review, 363 (1966).
21. Karst and Horowitz, Affirmative action and Equal Protection, 60, Verginia Law
Review 955 (1974).
22. Katz, A : Benign Preferences – An Indian Decision and the Bakke case, 25
American Journal of Comparative Law, (1978).
23. Lavinsky, DeFunis v. Odegaard, The Non-Decision with a Message, Columbia
Law Review, 520 (1975).
24. Mehta S.C. Persistence of the Caste system, Vested Interests in Backwardness,
Quest, no 36, Winter, 1962 – 63.
25. Michael Walzer, Complex Equality, In “ A Companion to Contemporary Political
Philosophy, Blackwell, Oxford, 1995.
26. Namboodiripad EMS : Caste conflict v. Growing unity of popular Democratic
forces, Economic and Political Weekly, Annual Number 1979.
27. Pradhan H.P. : Caste and Class in Bihar, Economic and Political Weekly, Annual
number, 1979.
28. Pulin B Nayak, On Equality and Distributive Justice, Economic and Political
Weekly, Bombay, Annual Number, 1991.
29. Rao M.S. : Political Elite and Caste Association : A report of a Caste Conference,
Economic and Political Weekly, 3 (1969).
30. Saberwal S. : Blacks, Harijans and Muslims, Economic and Political Weekly, 4
(1959).
31. Singh M.P. Social Justice for Harijans, Some Socio-legal Problems of
Identification, conversion and Judicial Review., Journal of Indian Law Institute,
355 (1978).
32. Shivanandan P, : Caste Class and Economic Opportunity in Kerala, an Empirical
Analysis, Economic and Political Weekly Annual number 1979.
33. Shriniwas, M.N. Social Change in Modern India, Berkeley; University of California
Press, (1972).
34. Willey R.J., A case for Preferential admissions, 21 Howard Law Journal, 175
(1978)

XXXXXXXXXXXXXX
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XXXXXXXXXXXXXXX
5. Concluding Observations .

Going back to our theme of Equality and justice which we had taken up in the
introduction, it may be observed that the human race in its quest of peace and
prosperity and to control its destiny, has always been endeavoring to devise legal
institutions of such character that may ensure a dignified place to every human
individual. While the ancients sought the deliverance of human race in religion and God,
the medieval societies slipped into hierarchical setting of institutions. The advent of
modernity marked a comprehensive change in its outlook and the human race sought
refuge in legal institutions to better its lot. The growing emphasis on justice and human
rights the world over, during recent years, should be seen in this perspective.
Philosophers like Dworkin and Rawls, therefore, have emphasized that the “Right to
equal concern and respect” is the most fundamental of all rights”. The idea of affirmative
action has grown in response to this quest of human race to ensure a dignified place to
every human individual under the sun.
This idea of Affirmative Action and adoption of policies of preferential treatment in India
in the form of Reservations in government services, educational institutions, legislative
bodies etc and in the United States of America, in the form of preferential treatment of
blacks in jobs and educational institutions, embodies the commitment of these societies
to eliminate inequalities of status and invidious treatment. The contents of such policies
differ in the two systems as the differing needs of the socio-economic circumstances
79 demand. However the basic commitment of quest for just and equal socio-political
order remain the same. The excluded ones due to the emphasis on preferential policies
have raised some very valid objections as has been seen above, however these very
discontents shall prove to be the touchstone for testing the commitment of these
societies towards Justice and Equality