ABSTRACT
This paper tries to interpret and dissect affirmative action policy in India in relation to the
surroundings for or against any of the ways of implementation and continuance. It offers some
forceful support for, as well as some opposition to, such policies from diverse sections of society
in India. Affirmative action primarily helps societies to remove existing disparities based on
caste, race, and socio-economic conditions. It also has positive implications for the increase in
literacy rate, the standard of living of individuals, and the strength of welfare measures for
economically weaker sections. The last years have taken steps towards critical evaluation of
affirmative action policies regarding collective empowerment. The paper discusses in detail all
these questions.
The Supreme Court and High Courts, within the framework of the Constitution, have greatly
contributed to the interpretation of these policies. The paper examines the extension of the idea
of 'creamy layer,' the disputes raised by the 50% ceiling on reservations, and the recent
amendment proposing reservational quotas for social advancement under the Economically
Weaker Section category. The research reflects on how the judicial interpretation brings about the
evolution and delineation of affirmative action in India, balancing social equity with the principle
of meritocracy.
Keywords: affirmative, discrimination, reverse, meritocrazy, castes, socio-economic.
1. Introduction
Affirmative action is a very important subject and, thus, often leads to a controversial debate
between two groups: those that support it and those who believe that equality is impossible
through affirmative action. Affirmative action generally describes a set of policies and practices
adopted by the government through most societies to incorporate certain groups since the
representation is deemed unsatisfying, particularly within education and employment. The
purpose of introduction of affirmative action can therefore be stated as elimination of inequalities
in society established through the caste system, bridge inequalities in employment experienced
by the disadvantage group, access to all education, and requiting rights potential issues that are
untold.
• Affirmative action and their application strictly vary from one country to another; they
exist either in the form of quotas duly designed solely for upgrading the participation. For
example, in India, it exists in the form of the reservation policy whereby seats are allotted
to underrepresented sections of the population in public employment, educational
institutions, and legislative assemblies(Ashwini Deshpande, 2006). In some other
countries like the USA, since quotas are absent, affirmative action implies offering
preferential treatment to someone based on membership in a position seen as a minority
group during the selection process(Gullett, 2000).
• The present paper allows its analysis of affirmative action in the light of the Indian
Constitution that embodies the idea of equality of all as amplified under Articles 14-18.
The paper further gives a detailed elaboration into affirmative action and its requirements
in society. It's invariably support and anti-support from different quarters in any society in
which affirmative action is implemented and continues. Given an understanding of
affirmative action related to current circumstances, this paper sought to focus primarily
on the impact of affirmative action.
• The First Amendment to the Indian Constitution in 1951 enables State governments to
make their own laws to implement reservations for the socially and educationally
backward sections of citizens or the Scheduled Caste and the Scheduled Tribes. The long-
standing tradition of judicial decisions interpreting and interfering with state policy
forced further amendments in the Constitution so that state governments would be able to
exercise affirmative action functions in accordance with the unique circumstances of the
given state. However, the Supreme Court in its verdict Indra Sawhney and Others v.
Union of India and Others dated 16 November 1992 fixed the quantum of reservation at a
definite limit of 50%, and introduced the notion of the criterion of the 'creamy layer',
thereby denying certain OBCs the benefit of reservations. This paper would examine
some important court judgments concerning affirmative action, touching upon
constitutional amendments, important rulings, and evolving legal principles such as the
50% cap on reservations, the creamy layer doctrine, and reservation in promotion.
• The aim of this research encompasses an analytical overview regarding the way through
which judicial verdicts have been instrumental vis-a-vis building and shaping the very
contours of affirmative action policies in India. The role of the judiciary has played a
pivotal role in defining the purposes, limits, and methods of this policy, ensuring that
such interpretation is dynamic and achieves a state within the threshold of constitutional
guarantees. Thus, this paper seeks an analysis of affirmative action with a comprehensive
examination of judicial pronouncements, based on which it would analyze their impact in
respect of social equity, meritocracy, and constitutional values.
2.Constitutional Framework of Affirmative Action in India:
The affirmative action policy in India is rooted in several key provisions of the
Constitution:
• Article 15(4) and 15(5): These articles empower the state to make special provisions for
the advancement of socially and educationally backward classes of citizens or for the SCs
and STs.
• Article 16(4) and 16(4A): These articles allow for reservation in public employment for
SCs, STs, and OBCs if the state believes these groups are underrepresented.
• Article 46: This article directs the state to promote the educational and economic interests
of SCs, STs, and other weaker sections.
• Article 335: This article states that the claims of SCs and STs shall be taken into
consideration in appointments to services and posts, but such claims should not
compromise the efficiency of administration.
3.HISTORY CONTEXT OF AFFIRMATIVE ACTION IN INDIA:
the colonial legacy and the social hierarchy that trace the roots of affirmative action in
India's caste-based social hierarchy and the policies of preferential treatment introduced
by the British colonial administration. "Constitution Provisions focus on the
incorporation of Articles 15(4), 16(4), 330, 332, and other relevant provisions within the
Indian Constitution, allowing for reservations in education, public employment, and
political representation.
India's social hierarchy based on the caste system marginalized certain groups for
centuries. The Dalits (formerly untouchables) and Adivasis (tribal communities) faced
very severe socio-economic exclusion. These caste-based discrimination intensified
during British rule: the Poon pact, 1932, signed between Mahatma Gandhi and Dr. B.R.
Ambedkar, and a landmark event." The pact dropped separate electorates for Dalits in
favour of reserved seats in legislatures."
In the Post-Independence Era Constitution of India (1950), Following Independence, the
makers of the Constitution of India, led by Dr B.R. Ambedkar, have since been
transferred into a policy of affirmative action through a system of reservations for SCs,
STs, and later OBCs in government jobs, education, and legislatures. They would,
therefore, uplift these historically marginalized communities. Article 15(4) and Article
16(4) of the Constitution explicitly empowered the state to make provisions for the
advancement of socially and educationally backward classes, SCs, and STs, and to
reserve a percentage of seats for SCs and STs in the Parliament and state assemblies,
according to their relative population in the country.
The Mandal Commission (1979) was inaugurated for the identification of the backward
classes and communities and devise recommendations for redressing their
marginalization. In 1990, the Commission report established a figure of 27% reservation
for OBCs in the employment of central government jobs and educational institutions.
This created outrage and uproar over caste-based reservations, most prominently from the
general (upper) caste populace. In 1992, Supreme Court Judgement, in the famous Indra
Sawhney case, the Supreme Court ratified the reserve for OBCs but imposed a 50% cap
on total reservations and exempted the "creamy layer" (economically advanced sections)
of OBCs from the benefit of reservation. Over time, however, with the advancement of
judicial interpretation in landmark cases, such measures have been expanding their scope
and nature.
• 2. The judiciary, in the early decades after independence, dealt with the tension between
the right to equality and affirmative action. Two significant cases laid the foundation for
the future of affirmative action in India:
2.1. Champakam Dorairajan v. State of Madras (1951)
• In this case, the Supreme Court held that the reservation of seats in educational
institutions violated Article 15(1), which guarantees equality before law. The decision led
to the First Amendment of the Constitution, which enacted Article 15(4), thereby giving
the state the power to make special provisions for the advancement of socially and
educationally backward classes.
2.2. M.R. Balaji v. State of Mysore (1963)
• This case was about how far the extent of reservations should go. The Supreme Court
held that reservation should not exceed 50%, as anything exceeding that level,
compromise the principle of equality under Article 15(1) and Article 16(1). The court also
held that "caste" could not be the sole criterion for determining backwardness.
2.3. Indra Sawhney v. Union of India (1992)-
• The Mandal Commission Case,This landmark
judgment upheld the reservation for OBCs but also reasserted the 50% ceiling on
reservations. The concept of the "creamy layer" was introduced, excluding economically
advanced individuals within OBCs from reservation benefits. Judicial Impact: This case
reaffirmed the judiciary's role in balancing affirmative action with meritocracy and
economic considerations.
2.4. Ashoka Kumar Thakur v. Union of India (2008)
• ,The Supreme Court upheld the constitutionality of the 93rd Constitutional Amendment,
which allowed reservations in educational institutions, including private ones, except for
minority institutions.
Judicial Impact: The decision emphasized the importance of inclusivity and reaffirmed
the principle of social justice enshrined in the Constitution.
2.5. Jarnail Singh v. Lachhmi Narain Gupta (2018)
• In this case, the Supreme Court clarified that the concept of the "creamy layer" applied to
SCs and STs, thus extending the exclusion of economically advanced individuals from
affirmative action benefits.
Judicial Impact: This ruling demonstrated the judiciary's evolving stance on defining
backwardness, moving beyond caste to economic criteria.
2.6. Maratha Reservation Case: Dr. Jaishri Laxman rao Patil v. Chief
Minister (2021)
• The Supreme Court struck down the Maratha reservation law passed by Maharashtra,
reiterating the 50% limit on reservations and emphasizing that any deviation from thus
rule requires “extraordinary circumstances”.
Judical impact: this ruling reinforced the 50% cap as an essential feature of reservation
policy, protacting the principle of meritocracy while addressing social inequalities.
4. Affirmative Action
In society, there exists a large number of societal inequalities and to bridge such
inequalities, affirmative action is essentially required in creating a welfare society
Affirmative action works as a grievance redressal mechanism specially designed for
disadvantaged groups and calls for rectification. The affirmative action is the best
example of the applicability of Rawls theory which emphasized that if the administration
wants to treat all persons equally and want to make a congenial atmosphere in the society
by giving equal opportunity to all, attention to be given to those who placed in less
favourable conditions instead of demand of the market (Surovtsev & Syrov,2015).
Accordingly, affirmative action is a set of programmes framed to create a justifiable
society for those who are seen to have historically been discriminated against by
providing preferential access to education, employment, healthcare, social welfare, etc.
Affirmative action cannot be used solely as equal opportunity. Equal opportunity is
working on the principle of non-tolerance of discrimination once it is detected. In
contrast, affirmative action adopted such practices which do not only subvert
discrimination but also avert discrimination. Hence with this unique characteristic,
affirmative action has acquired a distinct place in society, especially in the context
of India where disadvantaged groups are the composition of our socio-economic and
political life in the form of race, colour, caste, gender and biological disability.
2.2 Need of Affirmative Action Affirmative action in today's world is quite essential. The
affirmative actions taken by the administrative bodies either in public employment or
higher educational institutions towards a certain category of citizens belonging to SC, ST
and OBC are not only compensating the historical discrimination faced by them but also
benefiting the society in many more ways like promoting diversity, cross-ethnic
interaction, fairness in process of recruitment and admission, gender equity, social
mobility, etc.
