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Affirmative Action in India

703 Constitutional Law

Submitted By:

Rahul Bora

7th Semester & 4th Year

SM0120039

FACALITY IN CHARGE:

Prof. Diptimoni Boruah

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

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Table of Contents

Introduction.......................................................................................................................... 3
Background and Significance.............................................................................................. 3
Objective of the project ...................................................................................................... 5
Research Questions and Literature Review ………………………………………………6

Historical Context ……………………………………………………………………… 7

Constitutional Provisions......................................................................................................8
Fundamental Rights and Directive Principles of State Policy ........................................... 9
The concept of
reservation…………………………………………………………….…………………10
Legal Framework for Affirmative Action………………………………………………12

Constitutional amendments related to the reservation………………………………….13

Reservation in education institutions and government jobs……………………………14

Criticisms and Controversies…………………………………………………………..16

Creamy layer and reservation………………………………………………………….18

Impact of Affirmative Action…………………………………………………………….19

Social and economic upliftment………………………………………………………..20

Alternatives and Debates………………………………………………………………….22

Meritocracy vs. social justice…………………………………………………………...23

International Perspectives………………………………………………………………...24

Affirmative action in other countries…………………………………………………...25

Conclusion……………………………………………………………………………….....26

Assessment of affirmative action in the Indian Context………………………………..26

Future prospects and recommendations………………………………………….......... 28

Bibliography……………………………………………………………………………… 29

Introduction
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Affirmative action refers to policies and practices that aim to provide equal opportunities for
historically disadvantaged or underrepresented groups. These policies are implemented in
various fields, such as education, employment, and public contracting, to address systemic
discrimination and promote equality and inclusion.

In the Indian context, the Indian Constitution's concept of "reservation" has been a topic of
discussion for politicians, judges, jurists, social scientists, and the general public. It functions
as a tool to alleviate socioeconomic inequalities and elevate the weaker and disadvantaged
groups in society, allowing them to become part of the mainstream of the country. The poor
in India had been marginalised for centuries by the caste system, which prevented them from
accessing public places, receiving an education, and having an equal say in social life.1

Understanding that a revolutionary strategy was required, the Indian Constitution's authors
deliberately included the concept of "equality." In order to guarantee fair treatment for
everyone, regardless of caste, religion, race, language, or place of birth, this was done. The
framers chose a policy of "preferential treatment" because they recognised that defining
"equality" based only on individual accomplishment would not be sufficient in a society that
was firmly rooted in caste. By bolstering the weakest segments of society, this strategy aimed
to mitigate the effects of past injustices and inherited inequality.

The primary constitutional provision related to affirmative action in India is found in Articles
15 and 16. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, or
place of birth. It enables the state to make special provisions for the advancement of socially
and educationally backward classes, Scheduled Castes (SCs), Scheduled Tribes (STs), and
other marginalized groups. These special provisions can take the form of reservations in
educational institutions, public employment, and legislative bodies.

Article 16 guarantees equality of opportunity in matters of public employment and allows the
state to make provisions for reservations in favour of any backward class of citizens that are
not adequately represented in the services under the state. This provision aims to ensure the
representation and participation of marginalized groups in public employment.2

Background and Significance

Affirmative action is a policy approach aimed at promoting equality and inclusion by

providing preferential treatment or opportunities to individuals or groups who have
historically faced discrimination or disadvantages. The Indian constitutional scheme
incorporates affirmative action as a means to address historical social and economic
inequalities in the country.3

Background:

1
.Paramanand Singh, "Social Consequences of Reservation Policy" in Madhava
Menon (ed.), Social Justice and Social Process (1988), accessed on September 2023
2
Chhetri, D. P. (2012). POLITICS OF SOCIAL INCLUSION AND AFFIRMATIVE ACTION: CASE OF
INDIA. The Indian Journal of Political Science, 73(4), 587–600. http://www.jstor.org/stable/41858866.
Accessed on September 2023.
3
Sönmez, T., & Yenmez, M. B. (2022). Constitutional implementation of affirmative action policies in India.
arXiv (Cornell University). https://doi.org/10.48550/arxiv.2203.01483
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India has a long history of social and economic inequalities based on factors such as caste,
religion, and gender. The caste system, in particular, has been a deeply entrenched social
hierarchy that has resulted in the marginalization and oppression of certain groups, such as
the Scheduled Castes (SC) and Scheduled Tribes (ST). These groups have historically faced
discrimination, limited access to resources, and social exclusion.

The Indian Constitution and Affirmative Action:

The framers of the Indian Constitution recognized the need to rectify these historical
injustices and promote social equality. They incorporated specific provisions to address these
issues. The most prominent provision is found in Article 15(4) of the Indian Constitution,
which empowers the state to make special provisions for the advancement of socially and
educationally backward classes of citizens.

Additionally, Article 16(4) allows the state to reserve seats in public employment for specific
categories of people to ensure representation and opportunities for marginalized groups.
These provisions aim to promote equality of opportunity, counteract historical discrimination,
and bridge the socio-economic gaps among different communities.

Implementation of Affirmative Action in India:

To implement affirmative action effectively, the Indian government has introduced a range of
measures. The reservation system is a significant aspect of affirmative action in India. It
reserves a percentage of seats in educational institutions and government jobs for SCs, STs,
and Other Backward Classes (OBCs). The reservation percentage varies from state to state
and is periodically reviewed and adjusted.4

Apart from reservations, the government has also undertaken initiatives such as scholarships,
financial aid, and preferential policies to support marginalized communities in education,
employment, and entrepreneurship. These measures are designed to uplift underprivileged
sections of society, provide them with equal opportunities, and enable their social and
economic integration.

Significance of Affirmative Action in India:

The policy of affirmative action in India has played a crucial role in promoting social justice,
reducing inequality, and fostering inclusivity. It has provided historically disadvantaged
communities with opportunities for education, employment, and representation in public
institutions. By addressing the structural disadvantages and prejudices faced by marginalized
groups, affirmative action has contributed to their empowerment and social mobility.

Moreover, affirmative action has helped in creating a more diverse and representative society.
It has brought people from different backgrounds together and facilitated social cohesion by
breaking down traditional barriers and fostering understanding and empathy among different
communities.5

However, it is important to note that affirmative action in India has also faced criticism and
challenges. Some argue that it perpetuates divisions among different groups and undermines
meritocracy. There are on-going debates about the appropriate duration and extent of

4
Deshpande A. (2013). Affirmative Action in India. Oxford University Press., Accessed on October 2023.
5
Thakur, J. (2021, October 4). ExpLainEd: What was Mandal Commission report & why it is cited during
reservation debates. IndiaTimes. https://www.indiatimes.com/news/india/what-was-mandal-commission-report-
other-backward-castes-reservation-scheduled-castes-550850.html
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affirmative action policies, as well as the need for a more comprehensive approach to address
intersectional inequalities.

In conclusion, affirmative action within the Indian constitutional scheme is a significant tool
for promoting equality and inclusion. It acknowledges historical injustices and aims to rectify
them by providing preferential treatment and opportunities to marginalized communities.
While affirmative action has made progress in reducing social inequalities and empowering
disadvantaged groups, it remains an evolving and contentious policy area that requires on-
going evaluation and debate.

Objective of the project

The objective of the project on "Affirmative Action and the Indian Constitutional Scheme:
Promoting Equality and Inclusion" is to examine and analyse the implementation and impact
of affirmative action policies within the Indian constitutional framework. The project aims to
achieve the following objectives:

1. Understanding the legal framework: The project seeks to explore the constitutional
provisions in India that support affirmative action, such as Article 15(4) and Article
16(4). It aims to provide a comprehensive understanding of the legal basis and
principles underlying affirmative action in the Indian context.

2. Examining historical context and significance: The project aims to delve into the
historical background and social context that led to the adoption of affirmative
action policies in India. It seeks to understand the significance of these policies in
addressing historical injustices, promoting social justice, and reducing inequalities.

3. Assessing policy implementation: The project aims to evaluate the implementation

of affirmative action policies in India. It seeks to analyse the effectiveness of
measures such as reservations, scholarships, and preferential policies in providing
equal opportunities, social mobility, and representation to marginalized
communities.

4. Analysing impact and outcomes: The project intends to assess the impact of
affirmative action on various aspects, including education, employment, and social
integration. It aims to examine the outcomes of these policies in terms of improved
access to education, increased representation in public institutions, and socio-
economic upliftment of historically disadvantaged groups.

5. Identifying challenges and debates: The project seeks to identify the challenges and
controversies surrounding affirmative action in India. It aims to explore the debates
related to the duration, extent, and efficacy of these policies, as well as their
potential impact on meritocracy and social cohesion.

6. Providing recommendations: Based on the analysis, the project aims to provide

recommendations for enhancing the effectiveness of affirmative action policies in
India. It may include suggestions for policy improvements, alternative approaches,
or measures to address the intersectional nature of inequalities.
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Overall, the objective of the project is to contribute to the scholarly understanding of

affirmative action in the Indian context, shed light on its significance and challenges,
and provide insights for policymakers, researchers, and advocates working towards
promoting equality and inclusion.

Research Questions

The questions this project will look at are as follows:

Q1. Why does the current system of reservation exist? What is the historical context
behind it
Q2. How does the Constitution recognise the system of reservation?
Q3. How do countries around the world deal with social inequality?
Q4. What are some alternatives to the current system of reservation?

Scope and Limitation of the project?

The scope of the project will be limited to understanding in a comprehensive manner

the history, need and some drawbacks of the reservation policy in India. It will also look
at the history of the affirmative action policies around the world in brief before
providing some alternatives to the current system.

The project will be limited to answering the research questions and will not venture into
providing an opinion of the author at any point.

Research Methodology

Approach to research

In this project, the researcher has adopted a Doctrinal type of research. Doctrinal
research is essentially a library-based study, which means that the materials needed
by a researcher may be available in libraries, archives and other databases. Help from
various websites was also taken.

Sources of data collection

Data has been collected from secondary sources like books, web sources etc. The
researchers collected no primary sources like survey data or field data.

System of Citation and Footnoting

The researcher has followed the APA 4th edition method of citation and footing
throughout the project to maintain the uniformity.
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Literature Review

M.P. Jain's Eighth Edition of Indian Constitution Law:

This book, which is currently in its eighth edition, presents constitutional law as a
multifaceted and intricate topic in a clear, thorough, and organised manner. Students,
researchers, attorneys, judges, legal academics, policy makers, and interested individuals
seeking up-to-date information on constitutional jurisprudence will find the book's in-depth
insights to be beneficial.

The Fifth Edition of V.N. Shukla's Constitution of India:

A contemplative, clear, and thorough explanation of the Indian Constitution can be found in
the eleventh edition of "V. N. Shukla's Constitution of India". The books mentioned in this
reference are recognised from Directive Principles of State Policy, Chapter IV. The most
recent version comprises a thorough examination of the most recent Constitutional
Amendments and significant Supreme Court rulings choices. This book will be extremely
helpful for those studying law and for anyone who is interested instudying the fundamental
ideas of the Indian Constitution

Historical Context
The historical context of affirmative action in India is rooted in centuries of social and
economic inequalities based on factors such as caste, religion, and gender. The caste
system, which divides society into hierarchical groups with limited mobility, has been a
dominant social structure in India for thousands of years. This system has resulted in the
marginalization, discrimination, and oppression of certain groups, particularly the
Scheduled Castes (SC) and Scheduled Tribes (ST).

Under the caste system, SCs and STs were considered "untouchable" and subjected to
various forms of social and economic discrimination. They were denied access to
education, restricted from owning land, and subjected to menial and degrading
occupations. These historical injustices created significant disparities in terms of social
status, education, employment, and overall socio-economic development.

The struggle for social justice and equal rights gained momentum during the Indian
independence movement in the early 20th century. Prominent leaders such as Mahatma
Gandhi and B.R. Ambedkar advocated for the rights of the marginalized and called for
the abolition of untouchability and the establishment of a more inclusive society.

The framers of the Indian Constitution recognized the need to address these historical
injustices and create a more equitable society. They incorporated provisions to ensure
equality and social justice. Article 15(4) empowers the state to make special provisions
for the advancement of socially and educationally backward classes of citizens, while
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Article 16(4) allows for reservations in public employment to ensure representation for
marginalized communities.6

The introduction of affirmative action policies in India can be traced back to the 1950s
when the first reservation policies were implemented to provide quotas for SCs and STs
in educational institutions and government jobs. Over time, the scope of affirmative
action expanded to include Other Backward Classes (OBCs) as well, recognizing that
multiple social groups faced historical disadvantages.

Affirmative action in India has since undergone several reforms and adjustments to
address emerging challenges and debates. It continues to be a dynamic and evolving
policy area, with ongoing discussions on the duration, extent, and effectiveness of these
policies.

The historical context of social inequalities, the struggle for social justice during the
independence movement, and the vision of the framers of the Indian Constitution have
all played a significant role in shaping affirmative action policies in India. These
policies aim to rectify historical injustices, promote equality of opportunity, and create a
more inclusive and just society.7

Constitutional Provisions

The Indian Constitution incorporates several key provisions that support affirmative
action and promote equality and inclusion. The following constitutional provisions are
particularly relevant to affirmative action in India8:

1. Article 15(4): This provision empowers the state to make special provisions for the
advancement of socially and educationally backward classes of citizens or for SCs
and STs. It allows the state to provide preferential treatment, reservations, or other
measures to address the historical disadvantages faced by these marginalized groups.

2. Article 15(5): This provision allows the state to make reservations in educational
institutions, including private educational institutions, for backward classes, which
can include SCs, STs, and OBCs.

3. Article 16(4): This provision enables the state to make provisions for reservations
in public employment. It allows the state to reserve a certain percentage of posts for
SCs, STs, and OBCs to ensure their representation and participation in public
services.

6
Rao, J. L. N. (2008). AFFIRMATIVE ACTION IN INDIA : EMERGING CONTOURS. The Indian Journal of Political
Science, 69(3), 483–492. http://www.jstor.org/stable/41856439. Acccessed on October 2023.
7
ibid
8
Basavaraju, C. (2009). RESERVATION UNDER THE CONSTITUTION OF INDIA: ISSUES AND
PERSPECTIVES. Journal of the Indian Law Institute, 51(2), 267–274. http://www.jstor.org/stable/43953443
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4. Article 46: This article places a duty on the state to promote the educational and
economic interests of the weaker sections of society, particularly SCs and STs, and
protect them from social injustice and all forms of exploitation.

5. Article 338: This provision establishes the National Commission for Scheduled
Castes (NCSC), which is responsible for monitoring the implementation of
constitutional safeguards and welfare measures for SCs. The NCSC plays a
significant role in ensuring the effective implementation of affirmative action
policies.

6. Article 338A: This provision establishes the National Commission for Scheduled
Tribes (NCST), which is responsible for monitoring the implementation of
constitutional safeguards and welfare measures for STs. Similar to the NCSC, the
NCST plays a crucial role in the implementation of affirmative action for STs.

These constitutional provisions provide the legal basis and framework for affirmative
action in India. They empower the state to take affirmative action measures to address
historical disadvantages, promote social justice, and ensure equal opportunities for
marginalized communities. The reservations, preferential policies, and welfare
measures implemented under these provisions aim to uplift the socio-economic status of
historically disadvantaged groups and promote their inclusion in various spheres of
society.

It is important to note that the implementation of these provisions, including the extent
and duration of reservations, may vary across states and evolve over time based on
social, political, and legal considerations. The Supreme Court of India has also played a
significant role in interpreting and shaping the application of these constitutional
provisions in various judgments related to affirmative action.

Fundamental Rights and Directive Principles of State Policy

The Indian Constitution incorporates both Fundamental Rights and Directive Principles
of State Policy, which together form the guiding principles for governance and
protection of citizens' rights. While Fundamental Rights are justiciable and enforceable
by the courts, Directive Principles of State Policy provide guidelines for the state in
formulating policies and laws. Both sets of provisions are relevant to understanding
affirmative action and promoting equality and inclusion in India.9
7 discriminatory practices and policies, including those related to affirmative action.

- Right to Freedom from Discrimination (Article 15): Article 15 prohibits

discrimination on grounds of religion, race, caste, sex, or place of birth. It empowers the
state to make special provisions for the advancement of socially and educationally
backward classes, including Scheduled Castes (SCs), Scheduled Tribes (STs), and
Other Backward Classes (OBCs).

- Right to Equality of Opportunity in Public Employment (Article 16): Article 16

guarantees equality of opportunity in matters of public employment. It allows the state

9
(Directive Principles of State Policy (DPSP) - INSIGHTSIAS, 2022), https://www.drishtiias.com/to-the-
points/Paper2/directive-principles-of-state-policy-dpsp, Accessed on October 2023.
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to make provisions for reservations in public employment to ensure representation of

SCs, STs, and OBCs.

Directive Principles of State Policy:

Directive Principles of State Policy are enshrined in Part IV (Articles 36 to 51) of the
Indian Constitution. They lay down guidelines and principles for the state in
formulating policies and making laws. While not enforceable by the courts, they serve
as a moral and political compass for the government. The following Directive Principles
are relevant to promoting equality and inclusion:

- Promotion of Social Justice (Article 38): Article 38 emphasizes the state's duty to
promote the welfare of the people by securing social justice. It highlights the need to
minimize inequalities in income, status, and opportunities among different sections of
society.

- Economic and Social Upliftment of Weaker Sections (Article 46): Article 46 directs
the state to promote the educational and economic interests of the weaker sections of
society, particularly SCs and STs. It aims to protect them from social injustice and all
forms of exploitation.

- Equal Justice and Free Legal Aid (Article 39A): Article 39A directs the state to ensure
equal justice and provide free legal aid to economically disadvantaged sections of
society to ensure their access to justice.

These provisions, both in Fundamental Rights and Directive Principles of State Policy,
provide a constitutional framework for promoting equality, addressing historical
disadvantages, and formulating affirmative action policies in India. They serve as the
basis for the implementation of reservations, special provisions, and welfare measures
aimed at uplifting marginalized communities and fostering a more inclusive society.

The Concept of Reservation

The concept of reservation refers to the practice of reserving a certain percentage of

seats or positions in educational institutions, government jobs, and other sectors for
specific categories of individuals or communities. It is a form of affirmative action
aimed at addressing historical social and economic disadvantages faced by marginalized
and underrepresented groups10.

In the Indian context, reservation policies have been implemented to promote social
justice, provide equal opportunities, and ensure representation for historically
disadvantaged communities. The reservation system in India primarily focuses on three
categories:

1. Scheduled Castes (SCs): SCs, also known as Dalits, are communities historically
subjected to social and economic discrimination. Reservation policies aim to
provide them with access to education, employment, and other opportunities to
uplift their socio-economic status and ensure their representation in public
institutions.

10
(The Concept, Origin and Evaluation of Reservation Policy in India, n.d.)
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2. Scheduled Tribes (STs): STs represent indigenous tribal communities that have
faced historical marginalization, exploitation, and displacement. Reservation
policies aim to protect their rights, promote their socio-economic development, and
ensure their representation in various spheres of society.

3. Other Backward Classes (OBCs): OBCs comprise communities that are socially
and educationally disadvantaged but may not fall under the SC or ST categories.
Reservation policies for OBCs aim to address the barriers they face and provide
them with opportunities for advancement and representation.

The reservation percentage for each category varies based on state policies and is
periodically reviewed and adjusted. The reservations apply to educational institutions,
government jobs, and in some cases, public sector undertakings. The aim is to provide
proportional representation and opportunities to the respective communities, which
were historically excluded or discriminated against.

Reservation policies have been an integral part of India's social and political fabric
since the early years of independence. They are implemented through constitutional
provisions, such as Article 15(4) and Article 16(4), which allow the state to make
special provisions for the advancement and representation of backward classes. The
policies have played a significant role in expanding access to education, employment,
and political representation for marginalized communities, thereby promoting social
inclusion and reducing inequalities.

While reservation policies have been instrumental in addressing historical

disadvantages, they have also generated debates and controversies. Critics argue that
reservations can perpetuate divisions, hinder meritocracy, and overlook individual
capabilities. Some argue for a more comprehensive and nuanced approach that
considers factors beyond caste, such as economic criteria or intersectionality, to ensure
a more equitable distribution of opportunities.

The reservation system continues to be an evolving and contentious policy area in India,
with ongoing discussions about its scope, effectiveness, and potential modifications.
The aim is to strike a balance between providing opportunities to historically
disadvantaged communities and ensuring a level playing field for all individuals in a
diverse society.
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Legal Framework for Affirmative Action

The legal framework for affirmative action varies across countries, but I will focus on
the legal framework for affirmative action in India.

In India, the legal framework for affirmative action is primarily based on constitutional
provisions and subsequent legislation. The key constitutional provisions that form the
legal basis for affirmative action in India are as follows:

1. Article 15(4): This provision of the Indian Constitution allows the state to make
special provisions for the advancement of socially and educationally backward
classes of citizens or for SCs and STs. It enables the state to provide reservations,
quotas, or other preferential measures to address the historical disadvantages faced
by these marginalized groups.

2. Article 16(4): This constitutional provision empowers the state to make provisions
for reservations in public employment. It allows for the reservation of a certain
percentage of posts for SCs, STs, and OBCs to ensure their representation and
participation in public services.

3. Article 46: This article places a duty on the state to promote the educational and
economic interests of the weaker sections of society, particularly SCs and STs. It
directs the state to protect them from social injustice and all forms of exploitation11.

These constitutional provisions provide the broad framework for affirmative action in
India, but they also allow for the enactment of legislation and policies to implement
specific measures. The legal framework for affirmative action in India includes the
following legislation:

1. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989:
This legislation aims to prevent atrocities against SCs and STs and provides for
stringent punishment for offenses committed against them. It ensures the protection
of their rights and safeguards against discrimination and violence.

2. The Scheduled Castes and the Scheduled Tribes (Reservation in Posts and Services)
Act, 2006: This act ensures the reservation of vacancies in civil posts and services
under the central government for SCs and STs. It specifies the percentage of
reservation and provides guidelines for its implementation.

3. The Other Backward Classes (OBC) Reservation: The implementation of

reservation for OBCs varies across states in India. Each state has its own legislation
and policies to provide reservations for OBCs in educational institutions and public
employment.

Apart from these specific acts, various state governments and central government
ministries have introduced policies, guidelines, and schemes to support affirmative
action and promote social justice for marginalized communities. These include
scholarships, financial assistance, skill development programs, and other measures

11
(Legal Basis for Affirmative Action, n.d.)
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aimed at improving access to education, employment, and socio-economic opportunities

for disadvantaged groups.

The legal framework for affirmative action in India is shaped not only by constitutional
provisions and legislation but also by judicial interpretations. The Supreme Court of
India has played a crucial role in interpreting and clarifying the scope and limitations of
affirmative action policies through landmark judgments. These judicial pronouncements
have contributed to shaping the implementation and administration of affirmative action
in the country.

It is important to note that the legal framework for affirmative action is subject to
ongoing debates and discussions. There are debates surrounding the extent, duration,
and efficacy of reservations, as well as discussions about the need to address
intersectional inequalities and include other marginalized groups in affirmative action
policies. The legal framework for affirmative action continues to evolve as society
progresses and new challenges emerge.

Constitutional amendments related to the reservation

There have been several constitutional amendments related to reservations in India.

These amendments were made to expand and modify the scope of reservations and
address emerging issues. Some of the key constitutional amendments related to
reservation12 are:

1. The Constitution (First Amendment) Act, 1951: This amendment added Article
15(4) to the Indian Constitution. It allowed the state to make special provisions for
the advancement of socially and educationally backward classes, including
Scheduled Castes (SCs) and Scheduled Tribes (STs).

2. The Constitution (Seventy-Seventh Amendment) Act, 1995: This amendment

added Article 16(4A) to the Indian Constitution. It enabled the state to provide
reservations in promotions for SCs and STs in government jobs. However, this
amendment was subjected to judicial scrutiny and certain conditions and limitations
were imposed by subsequent court judgments.

3. The Constitution (Ninety-Third Amendment) Act, 2005: This amendment added

Article 15(5) and Article 16(4B) to the Indian Constitution. It allowed the state to
make reservations in private educational institutions, including minority educational
institutions, for backward classes, which can include SCs, STs, and Other Backward
Classes (OBCs). It also enabled the state to make reservations in promotions for
SCs and STs.

4. The Constitution (One Hundred and Second Amendment) Act, 2018: This
amendment added Article 338B and Article 342A to the Indian Constitution. It
modified the structure and powers of the National Commission for Scheduled
Castes (NCSC) and the National Commission for Scheduled Tribes (NCST),

12
Apoorva. (2023, April 19). Legal analysis of recent judgments on reservation policies in India | SCC Blog.
SCC Blog. https://www.scconline.com/blog/post/2023/04/19/legal-analysis-of-recent-judgments-on-reservation-
policies-in-india-legal-research-legal-news-updates/, Accessed on October 2023.
14 | P a g e

empowering them with more responsibilities for safeguarding the rights and welfare
of SCs and STs13.

These constitutional amendments have expanded the scope of reservations and provided
a legal framework for their implementation. They have allowed for reservations in
promotions, extended reservations to private educational institutions, and strengthened
the institutions responsible for protecting the rights of SCs and STs. These amendments
reflect the evolving understanding of affirmative action and the need to address
historical disadvantages and social inequalities.

It is important to note that the validity and interpretation of these constitutional

amendments have been subject to judicial review by the Supreme Court of India. The
court has provided clarifications and set certain conditions and limitations on the
implementation of reservations, aiming to strike a balance between providing
opportunities for marginalized communities and upholding principles of meritocracy
and equality.

The constitutional amendments related to reservation demonstrate the ongoing efforts to

address historical disadvantages, promote social justice, and create a more inclusive
society in India.

Reservation in education institutions and government jobs

Reservation in Education Institutions:

In India, reservations in educational institutions are implemented to ensure equal

opportunities and promote social inclusion for marginalized communities. The
reservation policy applies to various levels of education, including primary, secondary,
and higher education. The key provisions regarding reservation in educational
institutions are:14

1. Scheduled Castes (SCs) and Scheduled Tribes (STs): The reservation percentage
for SCs and STs in educational institutions varies across states but generally ranges
from 15% to 50%. This includes reservations in admissions to schools, colleges,
universities, and professional courses.

2. Other Backward Classes (OBCs): OBCs are also provided with reservations in
educational institutions. The reservation percentage for OBCs varies across states
and can range from 27% to 50%.

3. Economically Weaker Sections (EWS): In 2019, a constitutional amendment

introduced reservations for economically weaker sections in educational institutions.
This category includes individuals from general category families with an annual
income below a certain threshold and who meet other eligibility criteria. The
reservation percentage for EWS is typically around 10%.

14
Sibal, K. (2021, September). Caste and the implementation of reservation. . . The New Indian Express; New
Indian Express. Retrieved October 5, 2023, from
https://www.newindianexpress.com/opinions/2021/sep/27/caste-and-the-implementation-of-reservation-
2364089.html
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Reservation in Government Jobs:

Reservation in government jobs is a significant aspect of affirmative action in India.

The objective is to ensure representation and participation of marginalized communities
in public employment. The key provisions regarding reservation in government jobs are:

1. Scheduled Castes (SCs) and Scheduled Tribes (STs): The reservation percentage
for SCs and STs in government jobs varies across states and categories of posts.
Generally, it ranges from 15% to 50%. This includes reservations in recruitment to
various government departments, public sector undertakings, and civil services.

2. Other Backward Classes (OBCs): OBCs are also provided with reservations in
government jobs. The reservation percentage for OBCs varies across states and
categories of posts. It typically ranges from 27% to 50%.

3. Economically Weaker Sections (EWS): Similarly, the EWS category is entitled to

reservations in government jobs. The reservation percentage for EWS is typically
around 10%.

It's important to note that the reservation percentages mentioned above are not fixed and
can vary based on state policies and specific circumstances. The implementation of
reservations in educational institutions and government jobs is subject to periodic
reviews and adjustments to ensure adequate representation and social justice for
marginalized communities.

The reservation policies in education institutions and government jobs aim to address
historical disadvantages, provide equal opportunities, and promote social inclusion for
marginalized communities in India. However, the implementation of reservations has
also generated debates and discussions on the merits, limitations, and potential
modifications of these policies to strike a balance between promoting inclusivity and
maintaining efficiency and meritocracy.

Reservation in Education Institutions:

In India, reservations in educational institutions are implemented to ensure equal

opportunities and promote social inclusion for marginalized communities. The
reservation policy applies to various levels of education, including primary, secondary,
and higher education. The key provisions regarding reservation in educational
institutions are:

1. Scheduled Castes (SCs) and Scheduled Tribes (STs): The reservation percentage
for SCs and STs in educational institutions varies across states but generally ranges
from 15% to 50%. This includes reservations in admissions to schools, colleges,
universities, and professional courses.

2. Other Backward Classes (OBCs): OBCs are also provided with reservations in
educational institutions. The reservation percentage for OBCs varies across states
and can range from 27% to 50%.
16 | P a g e

3. Economically Weaker Sections (EWS): In 2019, a constitutional amendment

introduced reservations for economically weaker sections in educational institutions.
This category includes individuals from general category families with an annual
income below a certain threshold and who meet other eligibility criteria. The
reservation percentage for EWS is typically around 10%.

Reservation in Government Jobs:

Reservation in government jobs is a significant aspect of affirmative action in India.

The objective is to ensure representation and participation of marginalized communities
in public employment. The key provisions regarding reservation in government jobs are:

1. Scheduled Castes (SCs) and Scheduled Tribes (STs): The reservation percentage
for SCs and STs in government jobs varies across states and categories of posts.
Generally, it ranges from 15% to 50%. This includes reservations in recruitment to
various government departments, public sector undertakings, and civil services.

2. Other Backward Classes (OBCs): OBCs are also provided with reservations in
government jobs. The reservation percentage for OBCs varies across states and
categories of posts. It typically ranges from 27% to 50%.

3. Economically Weaker Sections (EWS): Similarly, the EWS category is entitled to

reservations in government jobs. The reservation percentage for EWS is typically
around 10%.

It's important to note that the reservation percentages mentioned above are not fixed and
can vary based on state policies and specific circumstances. The implementation of
reservations in educational institutions and government jobs is subject to periodic
reviews and adjustments to ensure adequate representation and social justice for
marginalized communities.

The reservation policies in education institutions and government jobs aim to address
historical disadvantages, provide equal opportunities, and promote social inclusion for
marginalized communities in India. However, the implementation of reservations has
also generated debates and discussions on the merits, limitations, and potential
modifications of these policies to strike a balance between promoting inclusivity and
maintaining efficiency and meritocracy.

Criticisms and Controversies

Reservation policies in India have been subject to various criticisms and controversies.
While reservations are implemented with the intention of promoting social justice and
equality, the following are some common criticism15s:

1. Meritocracy and Efficiency: One of the main criticisms is that reservations

compromise meritocracy and efficiency in educational institutions and government
jobs. Critics argue that candidates from reserved categories may be selected based

15
Hegde, S. (2015). The Many “Truths” of Reservation Quotas in India: Extending the Engagement. Social
Scientist, 43(3/4), 61–104. http://www.jstor.org/stable/24372936
17 | P a g e

on their caste or category rather than their individual merit and qualifications. This
viewpoint raises concerns about the overall quality and competitiveness of the
selection process.

2. Reverse Discrimination: Reservation policies have been criticized for creating

reverse discrimination against individuals from non-reserved categories. Critics
argue that deserving candidates from non-reserved categories may be denied
opportunities due to limited seats or positions available after reservations. This
criticism raises questions about the fairness and equity of reservation policies.

3. Creamy Layer Exclusion: The exclusion of the "creamy layer" within reserved
categories is a controversial aspect. The creamy layer includes individuals from
reserved categories who are socio-economically privileged. Critics argue that
reservation benefits should be targeted to those who genuinely require assistance,
and excluding the creamy layer is necessary to achieve this. However, determining
the criteria and effectively implementing the creamy layer exclusion can be
challenging.

4. Lack of Diversity: Critics argue that reservations, as currently implemented,

primarily focus on caste-based categories, which may not adequately address the
diverse needs of marginalized communities. There is a call for a more inclusive
approach that considers factors beyond caste, such as economic criteria, regional
disparities, religious minorities, gender, and intersectionality.

5. Stigmatization and Stereotyping: Reservation policies can inadvertently contribute

to stigmatization and stereotyping of individuals from reserved categories. There
can be social biases and assumptions that individuals from reserved categories are
less competent or have obtained their positions solely due to reservations. Such
stigmatization undermines the dignity and self-worth of individuals benefiting from
reservations.

6. Inefficiency and Backlog: The backlog of reserved vacancies in government jobs is

a persistent issue. Critics argue that the inability to fill these vacancies in a timely
manner suggests inefficiency in the system and raises questions about the
effectiveness of reservation policies.

7. Lack of Focus on Education and Skill Development: Some critics argue that
reservation policies primarily focus on reservations in educational institutions and
government jobs, but fail to address the underlying issues of educational quality and
skill development. They suggest that more emphasis should be placed on improving
the overall education system and creating opportunities for skill development to
uplift marginalized communities.

It is important to note that while these criticisms exist, reservation policies in India also
have strong support and are considered essential for addressing historical disadvantages
and promoting social inclusion. Public opinion on reservations is diverse, and ongoing
debates and discussions are crucial for continuously evaluating and refining the
implementation of reservation policies to ensure a fair and inclusive society.
18 | P a g e

Creamy layer and reservation

The concept of the "creamy layer" is an important aspect of reservation policies in India.
It refers to excluding certain individuals or families from reserved categories who are
socio-economically advanced or financially well-off from availing the benefits of
reservations. The intention behind the creamy layer exclusion is to target reservation
benefits to those who genuinely require assistance and to prevent the perpetuation of
privileges within reserved categories.

The concept of the creamy layer was first introduced by the Supreme Court of India in
the case of Indra Sawhney v. Union of India16 (commonly known as the Mandal
Commission case) in 1992. The court ruled that individuals from reserved categories
who have crossed a certain income or social status threshold should be excluded from
reservation benefits. This ruling aimed to ensure that reservations reach the intended
beneficiaries who are socio-economically disadvantaged and require affirmative action
for social upliftment.

The identification and exclusion of the creamy layer within reserved categories,
however, can be a complex and challenging task. Determining the appropriate criteria to
define the creamy layer and effectively implementing the exclusion has been a subject
of debate and controversy. The criteria for identifying the creamy layer may vary across
different states and categories, taking into account factors such as income, assets,
occupation, and social status.

Critics of the creamy layer exclusion argue that it is difficult to accurately assess and
implement such criteria, leading to potential loopholes and misuse. They also argue that
exclusion based solely on income or social status may not effectively capture the
underlying disadvantages faced by individuals from reserved categories.

On the other hand, proponents of the creamy layer exclusion argue that it is necessary to
prevent individuals who have already benefited from reservation policies from further
enjoying the benefits, as it can perpetuate privileges and limit opportunities for those
who genuinely require assistance.

The implementation of the creamy layer exclusion has been a subject of ongoing debate
and legal interpretation. The criteria and thresholds for identifying the creamy layer are
periodically reviewed and updated by the government and the judiciary to ensure that
reservation benefits reach the intended beneficiaries while addressing concerns of
fairness and equity.

Overall, the concept of the creamy layer exclusion attempts to strike a balance between
promoting social justice and preventing the perpetuation of privileges within reserved
categories. It aims to ensure that reservation policies effectively reach those who require
assistance for social upliftment, while acknowledging the importance of meritocracy
and preventing any misuse or misappropriation of benefits.

16
AIR 1993 SC 477
19 | P a g e

Impact of Affirmative Action

Affirmative action, including reservation policies, has had a significant impact on

Indian society. While the impact can vary across different contexts and individuals,
some common effects of affirmative action include17:

1. Increased Representation: Affirmative action has resulted in increased

representation of historically marginalized communities in educational institutions,
government jobs, and other areas of public life. It has provided opportunities for
individuals from Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward
Classes (OBCs), and other disadvantaged groups to access education and
employment sectors that were previously inaccessible to them.

2. Socio-Economic Empowerment: Affirmative action has contributed to the socio-

economic empowerment of marginalized communities. It has helped individuals
from these communities break the cycle of poverty and gain access to better
education, employment, and economic opportunities. This empowerment has led to
improvements in their living conditions, social status, and overall well-being.

3. Reduction of Disparities: Affirmative action has played a crucial role in reducing

social and economic disparities between privileged and marginalized communities.
By providing reserved quotas in educational institutions and government jobs, it has
aimed to bridge the gap and create a more equitable society. It has provided a level
playing field for individuals from disadvantaged backgrounds to compete and excel
in various fields.

4. Education and Skill Development: Affirmative action has led to increased

enrollment of students from marginalized communities in educational institutions. It
has provided access to quality education, scholarships, and other support systems
that have helped individuals acquire knowledge and skills necessary for personal
and professional growth. This has contributed to the overall educational
development of marginalized communities.

5. Social Empowerment and Dignity: Affirmative action has helped in empowering

marginalized communities socially and fostering a sense of dignity and self-worth.
It has challenged social stigmas and stereotypes associated with these communities
by providing them with equal opportunities and representation. It has contributed to
the assertion of their rights, recognition of their cultural identities, and improved
social acceptance.

6. Positive Role Models: Affirmative action has facilitated the emergence of positive
role models from marginalized communities. The success stories of individuals who
have benefited from reservations have inspired and motivated others to strive for
excellence and overcome societal barriers. This has created a positive ripple effect,
encouraging more individuals from marginalized communities to pursue education
and career goals.

17
(What Are the Effects of Affirmative Action Regulation on Workers’ Careers? | Institution for Social and Policy Studies,
n.d.)
20 | P a g e

However, it is important to note that the impact of affirmative action is not without
challenges and controversies. It has faced criticisms related to meritocracy, reverse
discrimination, and the need for a more inclusive approach. The effectiveness and
sustainability of affirmative action policies are ongoing topics of discussion and require
constant evaluation, adaptation, and refinement to address emerging issues and ensure
the promotion of equality and inclusivity.

Social and economic upliftment

Social and economic upliftment refers to the process of improving the living conditions,
social status, and economic well-being of individuals and communities, particularly
those who are disadvantaged or marginalized. Affirmative action, including reservation
policies, plays a significant role in promoting social and economic upliftment by
addressing historical inequalities and creating opportunities for marginalized
communities. Here are some ways in which affirmative action contributes to social and
economic upliftment:18

1. Education and Skill Development: Affirmative action policies, such as reservations

in educational institutions, help individuals from marginalized communities gain
access to quality education. This access to education empowers individuals with
knowledge, skills, and qualifications necessary for better employment opportunities
and economic mobility.

2. Employment and Economic Opportunities: Affirmative action policies extend to

reservation in government jobs and public sector enterprises, ensuring
representation and participation of marginalized communities. By providing
reserved quotas, individuals from these communities have increased access to
formal employment, which can lead to improved economic conditions, financial
stability, and upward mobility.

3. Poverty Alleviation: Affirmative action contributes to poverty alleviation by

breaking the cycle of intergenerational poverty. By providing equal opportunities in
education and employment, marginalized individuals have a greater chance of
escaping poverty and improving their economic conditions. It helps in reducing the
economic disparities between privileged and marginalized communities.

4. Entrepreneurship and Self-Employment: Affirmative action initiatives often include

support programs and incentives for entrepreneurship and self-employment. These
programs provide financial assistance, training, and mentoring to individuals from
marginalized communities to start their businesses. This promotes economic self-
reliance, creates employment opportunities for others, and contributes to the overall
economic development of the community.

5. Social Inclusion and Empowerment: Affirmative action policies contribute to social

inclusion and empower marginalized communities by providing them with equal
opportunities, representation, and a voice in decision-making processes. This fosters
a sense of dignity, self-worth, and social empowerment among individuals who
have historically faced discrimination and exclusion.
18
(IMF Pamphlet Series - No. 47 Social Dimensions of the IMF’s Policy Dialogue - Sustained Economic and Social
Development: The IMF’s Perspective, 1995), Accessed October 2023.
21 | P a g e

6. Reducing Social Disparities: Affirmative action aims to reduce social disparities by

addressing historical disadvantages faced by marginalized communities. By
ensuring their representation and participation in various sectors, it helps bridge the
gap between privileged and marginalized sections of society. This leads to a more
equitable distribution of resources, opportunities, and benefits.

It is important to note that while affirmative action policies contribute to social and
economic upliftment, they should be accompanied by comprehensive measures
addressing issues such as access to healthcare, infrastructure development, women's
empowerment, and overall inclusive development. A multi-faceted approach that
combines affirmative action with broader social and economic policies is crucial for
sustained social and economic upliftment.
22 | P a g e

Alternatives and Debates

The implementation of affirmative action policies, including reservations, has been

subject to ongoing debates and discussions. Critics and proponents of these policies
have put forth alternative approaches and suggestions for addressing issues of social
justice and equality. Some of the alternative proposals and debates surrounding
affirmative action include:

1. Economic-based Affirmative Action: One alternative approach suggests shifting the

focus from caste or community-based reservations to economic-based criteria. This
approach argues that economic disadvantage, rather than social identity, should be
the primary determinant for affirmative action. It proposes providing benefits and
opportunities to individuals based on their income levels or economic status,
regardless of their caste or community background.

2. Meritocracy and Skill Enhancement: Critics of reservation policies argue for a

greater emphasis on meritocracy and skill enhancement rather than preferential
treatment based on social identity. They advocate for creating an environment that
promotes equal access to quality education, skill development, and opportunities for
all individuals. This approach focuses on improving educational infrastructure,
providing scholarships, and enhancing vocational training to uplift marginalized
communities.

3. Targeted Programs and Policies: Some suggest implementing targeted programs and
policies that address specific challenges faced by different marginalized groups,
such as women, religious minorities, persons with disabilities, and transgender
individuals. These targeted interventions aim to address the unique barriers and
discrimination faced by these groups and provide specific support and opportunities
for their advancement.

4. Diversity-based Affirmative Action: Another alternative proposal is to move away

from a purely caste-based reservation system and adopt a more holistic diversity-
based approach. This approach considers a range of factors such as caste, gender,
religion, regional representation, and economic background to ensure representation
and inclusion of diverse identities in educational institutions and workplaces.

5. Improved Implementation and Monitoring: Critics argue that the focus should be
on improving the implementation and monitoring of affirmative action policies
rather than questioning their existence. They highlight the need for transparency,
efficiency, and fairness in the selection processes, ensuring that deserving
individuals from reserved categories benefit from the policies while preventing any
misuse or misappropriation of benefits.

6. Comprehensive Social Reforms: Some argue that long-term social reforms are
necessary to address the root causes of inequality and discrimination. This approach
focuses on addressing issues such as poverty, access to healthcare and basic
amenities, land reforms, and eliminating social prejudices and biases through
awareness campaigns and social mobilization.
23 | P a g e

It is important to note that these alternative proposals and debates exist alongside the
existing reservation policies. The discussions around affirmative action aim to
continually evaluate and refine the approaches to promote social justice, equality, and
inclusivity. Different perspectives offer valuable insights and can contribute to the
development of more effective and comprehensive strategies for addressing historical
disadvantages and creating a more equitable society.

Meritocracy vs. social justice

The debate between meritocracy and social justice revolves around the tension between
two important principles: the idea of rewarding individuals based on their merit and the
principle of achieving social justice by addressing historical disadvantages and
promoting equality of opportunity.19

Meritocracy emphasizes that individuals should be rewarded and granted opportunities

based on their individual abilities, talents, and efforts. It asserts that individuals who
work hard, display competence, and excel in their fields should be given preferential
treatment in areas such as education, employment, and promotions. Proponents argue
that merit-based systems promote efficiency, productivity, and innovation by ensuring
that the most qualified individuals occupy positions of responsibility.

On the other hand, social justice focuses on addressing the inequalities and
disadvantages that result from historical, systemic discrimination or marginalization. It
aims to create a fair and just society by providing opportunities and resources to those
who have been historically disadvantaged. Social justice advocates argue that simply
relying on meritocracy can perpetuate existing inequalities, as individuals from
disadvantaged backgrounds may face structural barriers that prevent them from fully
accessing opportunities and realizing their potential.

The meritocracy versus social justice debate is complex and multifaceted. Critics of
meritocracy argue that it can reinforce and perpetuate existing privilege and inequality,
as it often fails to account for factors such as socio-economic background, access to
quality education, and structural barriers that limit opportunities for certain groups.
They argue that a purely merit-based system may ignore the historical disadvantages
faced by marginalized communities, leading to further marginalization and exclusion.

Proponents of social justice argue that affirmative action policies, such as reservations,
are necessary to address historical injustices and promote equality of opportunity. They
contend that providing targeted assistance and preferential treatment to disadvantaged
groups is essential to level the playing field and create a more inclusive society. They
believe that social justice measures are necessary to correct past injustices and ensure
equal access to resources and opportunities.

Balancing meritocracy and social justice is a complex task. While meritocracy

recognizes the importance of individual talents and efforts, social justice highlights the
need to address structural inequalities and ensure equal opportunities for all. Many
argue that a nuanced approach is required, where merit-based selection processes are

19
(Meritocracy as Principle of Justice, 2019)
24 | P a g e

complemented by targeted measures that address historical disadvantages and promote

inclusivity.

Ultimately, the goal should be to create a society that recognizes and rewards individual
merit while also striving to rectify historical injustices and promote social equality.
Achieving a balance between meritocracy and social justice requires ongoing dialogue,
policy adjustments, and a commitment to creating a fair and just society for all.

International Perspectives

International perspectives on the balance between meritocracy and social justice can
vary based on the specific cultural, political, and socio-economic contexts of different
countries. While there is no universally agreed-upon approach, here are a few examples
of international perspectives on the topic20:

1. United States: In the United States, there is an ongoing debate about the balance
between meritocracy and social justice. Some argue for a merit-based system,
emphasizing individual achievement and equal opportunity, while others advocate
for affirmative action policies to address historical disadvantages and promote
diversity and inclusion. The Supreme Court has ruled on cases related to affirmative
action in higher education, balancing the pursuit of diversity with considerations of
equal protection under the law.

2. United Kingdom: In the United Kingdom, there is a similar tension between

meritocracy and social justice. The country has implemented various measures to
promote social mobility, including access to education and employment
opportunities for disadvantaged groups. The government has focused on policies
such as widening participation in higher education and addressing income inequality,
aiming to create a more equitable society while also valuing individual merit and
achievement.

3. Scandinavian Countries: Scandinavian countries, known for their comprehensive

welfare systems, often emphasize social justice as a core principle. These countries
aim to provide equal opportunities and resources to all citizens through social
policies and redistribution of wealth. The focus is on reducing income inequality,
providing universal access to education and healthcare, and ensuring social
protection. The emphasis on equality and social justice can sometimes be seen as
prioritizing collective well-being over individual merit.

4. India: India, with its reservation policies and affirmative action measures, takes a
more explicit approach to addressing social justice concerns. Reservation policies,
particularly for historically disadvantaged groups, are seen as a means of rectifying
historical injustices and promoting inclusivity. The Indian context highlights the
importance of considering social identities and historical disadvantages in order to
achieve a more just and equal society.

20
Sowell, T. (2004). Affirmative Action Around the World: An Empirical Study. Yale University Press.
http://www.jstor.org/stable/j.ctt1npfgb, Accessed on October 2023.
25 | P a g e

5. South Africa: South Africa has a unique historical context with its experience of
apartheid. In post-apartheid South Africa, the government has implemented
affirmative action policies known as Black Economic Empowerment (BEE) to
redress the imbalances created by apartheid. BEE policies aim to promote economic
inclusion and ensure representation of previously disadvantaged groups in various
sectors, particularly in business and employment.

It is important to note that these examples represent a range of perspectives and

approaches, and each country's approach to balancing meritocracy and social justice is
shaped by its specific historical, cultural, and socio-political factors. The ongoing
debates and discussions in these countries reflect the complexities and challenges of
finding the right balance between recognizing individual merit and addressing systemic
inequalities to promote a more equitable society.

Affirmative action in other countries

Affirmative action policies, similar to those implemented in India, exist in varying

forms in several countries around the world. While the specific nature and terminology
may differ, the underlying objective is to address historical disadvantages and promote
equality of opportunity for marginalized groups. Here are a few examples of affirmative
action in other countries:21

1. United States: Affirmative action in the United States aims to address historical
discrimination against racial and ethnic minorities, as well as women. It includes
policies such as preferential admissions in universities, targeted recruitment efforts,
and diversity initiatives in employment. The goal is to increase representation and
provide opportunities for underrepresented groups in education and employment.

2. Brazil: Brazil has implemented affirmative action policies, known as quotas (cotas),
in higher education since the early 2000s. These policies reserve a certain
percentage of university seats for students from racial and ethnic minority
backgrounds, particularly Afro-Brazilians. The objective is to address historical
racial inequalities and provide greater access to higher education for marginalized
groups.

3. South Africa: In the aftermath of apartheid, South Africa introduced affirmative

action policies to address historical racial inequalities and promote the inclusion of
previously disadvantaged groups. These policies, including Black Economic
Empowerment (BEE) measures, aim to provide economic opportunities, access to
employment, and ownership in various sectors for black South Africans.

4. Malaysia: Malaysia has implemented affirmative action policies, known as the

Bumiputera policy, to address economic disparities among different ethnic groups.
The policy provides preferential treatment in areas such as education, employment,
and business ownership for the Bumiputera, which includes the indigenous
population and the Malay majority, with the goal of reducing socio-economic
imbalances.

21
Jenkins (n.d.)
26 | P a g e

5. South Korea: South Korea has implemented affirmative action policies to increase
representation and opportunities for women in the workforce. These policies include
gender quotas for public sector employment, support for work-life balance, and
initiatives to address gender-based discrimination. The aim is to promote gender
equality and overcome gender disparities in employment and career advancement.

It is important to note that the specific policies and their effectiveness can vary across
countries, and the implementation of affirmative action is often subject to debates and
criticisms. The approaches taken in different countries reflect the unique historical,
social, and political contexts in which these policies are developed to address specific
forms of discrimination and inequalities

Conclusion

In conclusion, affirmative action, including reservation policies, plays a significant role

in promoting equality and inclusion in society. It aims to address historical
disadvantages faced by marginalized communities and create opportunities for their
social and economic upliftment. Affirmative action is embedded in the constitutional
frameworks of many countries, including India, and is seen as a means to achieve social
justice and equal opportunities.

Through reservations in educational institutions and government jobs, affirmative

action policies provide marginalized communities with access to quality education,
employment, and representation. This helps in breaking the cycle of intergenerational
poverty, reducing social disparities, and promoting social and economic empowerment.

However, affirmative action also faces challenges and controversies. Critics argue that
it can perpetuate reverse discrimination, undermine merit-based selection, and overlook
economic factors. The concept of "creamy layer" has been introduced to address some
of these concerns by excluding affluent members of reserved categories from
reservation benefits.

The implementation of affirmative action requires careful consideration, monitoring,

and review to ensure its effectiveness and fairness. Alternative approaches and debates
exist, including economic-based criteria, targeted programs, and improved
implementation. Balancing meritocracy and social justice is an ongoing challenge, and a
nuanced approach is needed to strike a balance between recognizing individual merit
and addressing historical disadvantages.

International perspectives on affirmative action vary, but many countries have

implemented similar policies to address historical discrimination and promote
inclusivity. Examples include the United States, Brazil, South Africa, Malaysia, and
South Korea, each tailored to their specific socio-political context.

Ultimately, the goal of affirmative action is to create a more equitable society by

providing equal opportunities, representation, and social and economic upliftment for
marginalized communities. It is a complex and evolving concept that requires ongoing
dialogue, evaluation, and refinement to ensure its continued effectiveness in promoting
equality and inclusion.
27 | P a g e

Assessment of affirmative action in the Indian Context

Assessing the impact of affirmative action in the Indian context is a complex task that
requires considering multiple factors and perspectives. Here are some key aspects to
consider when evaluating the effectiveness and challenges of affirmative action in
India:22

1. Access to Education: Reservation policies in educational institutions have increased

access to quality education for marginalized communities. This has led to a
significant increase in the enrollment of students from these communities in higher
education. However, there are challenges in terms of the quality of education,
inadequate infrastructure, and limited opportunities for skill development, which
need to be addressed to ensure that reserved category students can fully benefit from
educational opportunities.

2. Representation and Empowerment: Affirmative action has contributed to increased

representation and participation of marginalized communities in government jobs
and public sector enterprises. This has helped in empowering these communities
and breaking the cycle of social exclusion. However, concerns have been raised
about the underrepresentation of certain marginalized groups within reserved
categories and the need for more inclusive policies that address intersectionality and
diverse identities.

3. Economic Upliftment: Affirmative action policies aim to promote economic

upliftment by providing employment opportunities for marginalized communities.
Reservation in government jobs has helped in reducing disparities and increasing
the socio-economic status of individuals from reserved categories. However, there is
a need to address issues such as limited job opportunities in the public sector and the
need for inclusive policies in the private sector to ensure sustainable economic
upliftment.

4. Creamy Layer and Exclusion: The concept of the creamy layer, which excludes
affluent members of reserved categories from reservation benefits, was introduced
to address concerns of perpetuating privilege and to ensure that affirmative action
reaches those who truly need it. However, there are challenges in effectively
implementing and defining the creamy layer, and there have been debates about its
impact on the intended beneficiaries.

5. Implementation Challenges and Misuse: Affirmative action policies face challenges

in their implementation, including issues such as corruption, nepotism, and the
misuse of reservation benefits. Some instances of fraudulent practices and false
claims have been reported, highlighting the need for robust monitoring and
oversight mechanisms.

6. Social Cohesion and Backlash: Affirmative action policies have also faced criticism
and backlash from certain sections of society. Arguments against reservations
include claims of reverse discrimination, erosion of meritocracy, and perpetuation

22
(Affirmative Action in India:an Alternative Perspective, 2007)
28 | P a g e

of caste divisions. Balancing the interests of different sections of society and

promoting social cohesion remains a challenge.

It is important to note that the impact and assessment of affirmative action are not
uniform across all communities and regions in India. The effectiveness of these policies
can vary based on factors such as socio-economic background, regional disparities, and
intersectionality.

Overall, affirmative action in India has made significant strides in addressing historical
disadvantages and promoting social justice. However, there is a need for continuous
evaluation, improvement, and dialogue to ensure that these policies are effective,
inclusive, and address the evolving needs of marginalized communities. It is crucial to
strike a balance between promoting equal opportunities and meritocracy while
addressing systemic inequalities and historical injustices.

Future prospects and recommendations

This project will provide a comprehensive analysis of affirmative action in the Indian
constitutional scheme, considering its historical context, legal framework,
implementation challenges, and impact. It will also explore alternative approaches and
international perspectives, facilitating a broader understanding of the subject matter.
The findings of this project will contribute to the ongoing discourse on affirmative
action and inform discussions on social justice and inclusivity in India.
29 | P a g e

Bibliography

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Paramanand Singh, Social Consequences of Reservation Policy

Durga Chetri, Politics Of Social Inclusion And Affirmative Action: Case Of India
Sönmez, T., & Yenmez, M. B., Constitutional implementation of affirmative action policies
in India. arXiv
A. Deshpande. Affirmative Action in India.
J. L. N. Rao Affirmative Action In India : Emerging Contours
C. Basavaraju ,Reservation Under The Constitution Of India: Issues And Perspectives
Thomas Sowell, Affirmative Action Around the World: An Empirical Study
S. Hegde, The Many “Truths” of Reservation Quotas in India: Extending the Engagement. Social
Scientist

Blogs

Apoorva, Legal analysis of recent judgments on reservation policies in India, SCCBlogs

Newspaper Article

K.Sibal, Caste and the implementation of reservation.