A commentary on the positive discrimination policy of india

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T Deane*

  1. Introduction

Affirmative action1 and discriminatory measures are complex and controversial issues. The purpose of affirmative action is to speed up the establishment of a representative and unprejudiced workforce in addition to assist those who were in the past deprived by unfair discrimination to fulfil their highest potential.2 The term itself invokes emotions that range from fear and rage to satisfaction.3 Affirmative action has encouraged an ongoing debate regarding the legal, moral and economic questions arising from the preferential treatment of certain groups of people in society.4 Underlying this debate are various concerns about the notion of reverse discrimination or unfairly disadvantaging individuals who bear no responsibility for past or present discrimination practised by others.
This article states the current position with regard to the caste system of and the reservation of jobs in the Republic of India in the context of affirmative action and the achievement of equality in the workplace. Its purpose is to highlight the extreme division of opinion about what is socially acceptable, namely, caste. Further, it provides the reader with an understanding of the need for affirmative action in the first place in India and thereby creates a powerful tool for understanding discrimination and the need for affirmative action measures. Another goal is to provide useful guidelines and information to all persons involved in implementing affirmative action programmes. It serves to show that if affirmative action measures and/or discriminatory measures are not properly thought out then affirmative action becomes burdensome and even more discriminatory rather than a means of achieving equality and redressing past wrongs.
One might ask what benefit this analysis of the aspects of the Indian constitution dealing with affirmative action policies has for the South African context. An analysis of the political, legal and constitutional systems of other countries is very relevant. It helps to promote a better understanding of a country’s own situation and assists in a proper evaluation of one’s own institutions. It also assists in the interpretation of constitutions and help to enforce human rights.5 Further, whenever there is a controversial topic like affirmative action, which poses a great deal of difficulty, such a problem can be solved with the help of a comparative study.6 This study will also be useful in that the experiences in India may be helpful in informing South Africa of the future and long-term consequences of affirmative action. Therefore this study of the relevant constitutional provisions relating to equal opportunity in this country becomes important. This approach becomes useful in that experiences in one country will help enrich another country to learn from such practices.
However, it must be cautioned that when a country is looking at the experiences of other countries, the specific history of its own country must be born in mind together with the remedies and aims that its constitution wants to achieve. Therefore, even though South Africa will do well to look beyond its own borders when implementing affirmative action programmes it should do so with circumspection, taking into account its own specific history.

  1. Beginnings of discrimination in India – the Caste System

There are many other countries and nations that are characterised by inequalities including social inequalities but in India these inequalities are highly structured in the form of caste. Caste has existed in India for such a long time and has undergone considerable change but it still involves millions of people. The continuation of superiority and inferiority by reason of ones skin colour, religion and economic and social status is a world-wide phenomenon. The caste system was not the creation of a single person like the raja (king). To a certain extent it developed out of a system of social practice that became a norm or way of life over several thousands of years.
The issue of caste is a very complex and complicated one. Caste is perceived as “an exclusively Indian phenomenon which is not paralleled by any other institution elsewhere in its complexity, elaboration and inflexibility”.7 Kroeber describes the caste system as a “system of social stratification, examples of ranked aggregates of people, that are usually rigid, birth-ascribed, and permits no individual mobility”.8 In the caste system everyone is classified. The castes, like the system of apartheid and racial discrimination, teach us a fundamental social principle; hierarchy.9 This classificatory system assumes that certain traits, qualities, functions, characteristics or powers are inherent in and definitive of each of the varnas. This system of caste is enormously complicated and not easily understood. The following paragraph attempts to simplify the issue of caste so as to give the reader an understanding of how the system works.
There are many and varied theories about the establishment of the caste system. These include religious, biological and historical theories.10 According to the caste system a person is regarded as a part or member of the caste into which he or she is born. Such person therefore remains within that caste until their death, although the exact standing of that caste may vary among the regions of India and over time. Thus, caste is a many-layered social hierarchy developed several millenniums ago. In Hindu custom the caste system owes its origins to the four varnas.11 One of the religious theories gives details on how the four varnas were founded.12
Accordingly, there are five different levels or categories of this system. They are the Brahman, Kshatriya, Vaishya, Shudra, and Harijans ranked in accordance of hierarchy. Within each of these categories are the actual "castes" or jatis. It is within these ranked categories that people are born, in which they marry, and in which they die. This system has worked well for Indian people in segregating them and even now plays a fundamental role in contemporary India. It therefore becomes interesting to see how positive discrimination has affected the caste system and its people therein.
It has been argued that in the general sense, some societies are actually or were caste-based in nature and these include countries like South Africa during the era of apartheid and the South of the United States of America until the Civil Rights movement. Nevertheless, differentiations arise when comparing caste-like systems in other nations to India. In other countries, like South Africa and the United States of America, the separation between one group and the other was typically along ethnic or racial lines.13 In India, the separation was more indistinct as one caste in India would appear very much like another. Like race, caste is something one is born into. However, caste in India is more of a social structure, in contrast to the situation in the US, where “race is a fixed and obvious physical condition”.14
Another theory relating to the beginnings or origins of caste has to do with the time that India was colonised by the British. India was once a British colony. The British left behind them in India a legacy of their ideologies and culture and even today it is evident that English, the language of their oppressors, is a very important and respected language in India. The British influence is apparent even in most of the laws in India. Some laws, as in South Africa, have been directly adopted and adapted from the English laws.
Some researchers propose that the resultant representation of the caste system was to a great extent the product of European racialist theories, and the benefit of colonial rule as a phenomenon grounded in Indian cultural realities. Contemporary researchers further propose that preceding the colonial period castes were much more open and flexible. This proposition is supported by various passages in the Vedas which indicate that the four varnas were originally based on occupations and not simply decided by one’s birth. It was at a later stage that the present inflexible caste system came into place.
However, with regard to the caste system, the first effect of importance that the British had on the caste system was to reinforce it. It has been argued that the British saw the advantages in preferring some groups to others. As the Brahmins were once very powerful in influencing the people of India, they gave returned to the Brahmans special privileges that the previous Muslim rulers had taken away.
Even though privileges were given to certain of the groups in India, for the most part the discriminatory practices that were practised amongst the various groups were completely ignored by the British. Some have argued that this attitude was seen as a form of indirect support for the caste system by the British. The overall British policy towards caste was seen as a policy of non-interference.15
While researchers hold opposing views on the origins of the caste system in India, they hold the same opinion that it is a very ancient institution that has led to vast inequalities in Indian society. The extreme manifestation of such inequalities in India led to a growing awareness of the need for reform.16 Affirmative action was needed to outweigh the imbalances of the past. In India, affirmative action is known as “preferential treatment”, “protective discrimination” or “reverse discrimination”. It is known by the name of reverse discrimination because it involves discrimination in favour of those who, until recently, had themselves been the victims of discrimination.17 The phrase “reverse discrimination” may mean different things to different people. The phrase is sometimes charged with being a term of prejudice and is restricted to refer to those situations where an absolute preference is given to the preferred groups.18 In India the term most commonly used is positive discrimination.19
In the preamble to the Constitution of India, negative public discrimination on the basis of caste is forbidden. However, ranking according to one’s caste and caste-based interaction have transpired for centuries and it seems that they will carry on doing so well into the predictable future. As stated earlier, caste systems in India and caste-like groups are ranked. Within most communities or townships (villages), the relative rankings of each locally represented caste is known, and people’s attitudes toward one another are continuously fashioned by this knowledge. The caste system is seen as a closed assembly whose members are strictly confined in their choice of employment and the amount of social involvement. One’s status in society is decided by the caste of one’s birth and may hardly ever be transcended. A specialised labour group may function as a caste inside a society otherwise free of such distinctions.20 In general, caste serves to uphold the status quo in the Indian social order.

It is because of this hierarchal construction, with its rising order of opportunities and its sliding order of disabilities, which has been in operation for about 3000 years, that there was and continues to be an overwhelming majority in the nation that are socially, economically, educationally, and politically backward. These victims of entrenched backwardness comprise the present Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). These classes are generically called the “backward classes”, but each class’s nature and magnitude of backwardness are not the same.21

  1. Reservations

The Indian government has a policy of compulsory compensatory discrimination which comprises various preferential schemes. The policy initiative most commonly utilised by them to offset the inequalities of society is a policy of reservations.22
Reservations are a type of affirmative action whereby a proportion of seats are set aside for the previously disadvantaged. Reservations take place in the “Parliament of India, state legislative assemblies, central and state civil services, public sector units, central and state government departments and all public and private educational institutions”. According to the Indian Constitution the exception lies in the minority and religious educational institutions for the socially and educationally backward classes of citizens or the Scheduled Castes and Scheduled Tribes, who are perceived by the government to be inadequately represented in these services and institutions.23 Therefore the term “reservations” indicates a set allocation of certain public service positions for recognised minorities. This term encompasses the allocation of seats in educational institutions as well.24
The stated reason for the implementation of reservation is the necessity to advance the needs and interests of any socially and educationally backward classes of citizens, such as the scheduled castes and scheduled tribes, who had been subjected to discrimination for more than thousands of years by the upper caste men of India.25
Preferences in India are of three basic types. Firstly, there are reservations. These reservations assign or make possible access to esteemed positions or resources.26 Secondly, there are programmes involving expenditure or the provision of services for e.g. scholarships, grants, loans, land allotments, health care, and legal aid to the beneficiary groups.27 Thirdly, there are special protections.28 Reservations together with other welfare initiatives comprise the heart of affirmative action for these previously disadvantaged groups.29 To indicate the scale of this policy the central government has set aside twenty-seven percent of all government jobs and places in institutions of higher education for the socially and educationally backward classes.30
Specifically, the Constitution of India provides for “reservations” in favour of two disadvantaged groups; namely, the Scheduled Castes (SCs) and the Scheduled Tribes (STs). These reservations exist in the following areas:

  1. in the state legislatures and the union legislature or parliament,

  2. in services under the states, and

  3. in educational institutions.

Apart from reservations in educational institutions, other programmes for the upliftment of the backward classes include:

  1. exemption from school fees,

  2. the provision of stipends or scholarships,

  3. the provision of facilities like book grants, and

  4. the maintenance of hostels, or assistance to hostels for SC students.31

The central government further sponsors the following:

  1. college scholarships,

  2. the award of travel grants, and

  3. a seven-and-a-half percent reservation in favour of SCs in merit scholarships,

  4. assistance by way of special coaching for the SC students residing in hostels, and pre-examination coaching facilities for SC students appearing in competitive examinations,32 and

  5. in some states, reservations in services under the state and in educational institutions in favour of OBCs. Reservations coupled with other welfare programmes constitute the core of affirmative action for the upliftment of these groups.33

In Parliament and in state legislatures political reservation is only for the benefit of the SCs and the STs but not for the other OBCs. Political reservations are written into the Indian Constitution and the provisions make known the uncertainty of the architects of the Constitution as well as of policy makers in modern day India.34

The constitutional provisions relating to political reservations for the SCs and the STs are compulsory. However, when the provisions were made obligatory in 1950, it was determined that this would be valid only for ten years, so they would last for a single decade only. However, since then the Indian Constitution has had to be amended every ten years to continuously extend political reservations for the SCs and STs.
The second category of reservation, which is even more controversial than the first, is identified as job reservations.35 Job reservations pertain mainly to government appointments at union and state level and also to organisations which are significantly subsidised by the government. The provisions for job reservation apply not only to the SCs and STs but also to the OBCs as well. It has happened that over the years there has been an extension of job reservations for the benefit of the OBCs. This has now become the most controversial issue among positive or affirmative action measures in India. The question is whether or not the wholesale expansion of job reservations for the OBCs is in harmony with the will of the Constitution or not. For job reservations, unlike political reservations, the provisions are not obligatory; they are enabling provisions since the Indian Constitution states that the state may take such measures as are necessary for the special benefit of the OBCs.
Finally, the third category of reservation is reservations in education. As far as admissions are concerned, it is possible that the different States of India may grant concessions short of outright reservation to handicapped persons, for e.g., the awarding of stipends and scholarships etc. As there is no legislation mandating the equal and fair representation of disabled persons in the workforce. these concessions may prove to be inadequate.36 These, again, are debatable, because reservations are present not only in general arts and science courses but also in medical and engineering schools. The reasoning behind reservations in India is that special opportunities should be given for some, over and above the general provisions for equality of opportunity for all.
The key aim for providing reservations for SCs and STs in civil posts and the services of the Government is to provide jobs to some persons belonging to these communities and thereby increase their representation in the services; so as to facilitate their social and economic advancement and make due place for them in society. Article 16(4) of the Constitution specifically empowers the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State. With the same end in view, the Constitution envisaged in the Directive Principles of State Policy and elsewhere the economic and educational development of the weaker sections, particularly the SCs and STs.

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