A lot of problems created, heated talks and the controversies provoked, a sigh of relief had been provided to many, and a number of answers have been furnished by the present and recent ruling of the apex Court. Once again the same old wine in the new bottle has been served by the Supreme Court through its recent verdict which Okays 27% quota for the OBCs. The five member Supreme Court bench upheld the OBC quota in central educational institutions clearing the way for the reservations of seats for the ‘backward’ castes over a period of three years from the academic year 2008-2009 . The cream-hunters received a vital blow through the judgment when the Court said emphatic ‘no’ to the creamy layer for the purpose of the inclusion .
Already much ink has been splashed on the issue of affirmative action both in India and USA. Therefore not much is desired to waste now. The enormous literature is available on affirmative action in debris. Yet the issue remains unresolved and every now and then opportunists are ready to stoop to dig these matters in order to grab or retain the power. No issue has stirred up so much controversy as the present issue on Affirmative Action programs and their continuous existence which was meant to address the past discrimination for limited time only both in India and USA. The politics today has become the heaven of corrupt and they always promise the impossible on the eve of every election which has been described by some scholars as ‘election gimmick’. In this context, a comprehensive and comparative study of the topic is expeditious as well as desirous in order to examine the current state of affairs in affirmative actions and at the same time to search for the solution to solve the present problem, which was probably done by Galanter Marc for what he termed “Compensatory Discrimination”.
The terms like ‘castes’ in India and ‘race’ in USA are believed to be predominant factors used for affirmative actions though there exists other parameters like religion etc. Caste differences were supposed to be based, not on physical differences, but on assumed spiritual differences. Two individuals might be physically similar, yet one be a Brahmin and a Dalit. The race is also one of the major factors of discrimination prevalent in both the country . Further there are never-ending disputes about the statistical and other data used by the Government of India as well as of states. Furthermore Neither the central nor the states governments has made any real efforts at evaluating or appraising as to how far affirmative action has made a dent in the life of so called ‘disadvantaged groups’.
Soon after the intention of founding philosophers of the Indian Constitution had been expressed, the affirmative action programs in the form of reservations have been put to test and since then, every now and then the problems relating to affirmative action programs are prevalent in one form or the other. Every aspect of these programs has its own problems and requires some sort of analysis in order to understand those problems. It appears from more closure look at the paradigm that at earlier the Judiciary has been reluctant in implementing these programs in India as evident from the case of State of Madras v. Champakam Dorairajan. In this case, the Court has pronounced that caste based reservations as per Communal Award violates Article 15(1). In order to resolve this dilemma the 1st Constitutional amendment was introduced. Then came the famous case in 1963 of M.R. Balaji v. Mysore in which the Court has put 50% cap on reservations. Almost all the states followed this judgment except Tamil Nadu and further the same law has been put under the ninth schedule of the Indian Constitution.
Another move in this direction was the case of Indra Sawhney and Others v. Union of India (Popularly known as ‘Mandal Case’) in which a number of doubts have been cleared and at the same time created. The court upheld implementation of separate reservation for other backward classes in central government jobs. It also ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities and declared separate reservations for poor among forward castes as invalid. It also held that reservations can not be applied in promotions. To escape from this pronouncement again 77th Constitutional amendment came into existence by virtue of which Art. 16(4)-A and 16 (4) - B have been inserted.
Further in Nagraj and Others V Union of India, the court upheld these constitutional amendments. In 1994, the Supreme Court advised Tamilnadu to follow 50% limit by reason of which the whole issue regarding Tamilnadu Reservations had been put under 9th schedule of the constitution from which at that time Supreme Court’s jurisdiction had been ousted albeit at present, this is not the case. Finally in P.A. Inamdar and others V State of Maharashtra Supreme Court ruled that reservations can not be imposed on unaided private educational institutions. To get over the difficulty created by the court, 93rd Constitutional Amendment Act was introduced which inserted a brand new clause Art. 15 (5).
In the year 2006, anti-reservation protests intensified in all parts of India. Dr.Sam Pitroda, Chairperson of the National Knowledge Commission opposed the scheme to extend caste based reservations to OBCs in institutes of higher education.
The reservation in the private sector especially demands a special look and attention particularly after the recent ruling of the Supreme Court and the need emphasized by the Common Minimum Programme of the UPA Government in this respect. The various interpretations given under the Constitution are also need to be examined in order to explore the possibilities of inclusion of members within the socially and educationally backward classes. There are also talks of reservations on the basis of religion which needs to be taken into account.
The American Experience:-
The American Judiciary has been also confronted with the same experiences of the Indian Judiciary . The important difference between the USA and India is that affirmative action in the former is not enshrined in the constitution, nor is it quota-based. The ‘sentiments of equality’ were contained in the Declaration of Independence but not in the original text of the Constitution.
But it is said that the real stirrings of equality came from the Civil Rights Act 1864 especially through its Title VI and VII. Obviously the various amendments also had an important role to play. The 13th , 14th and the 15th became milestone in the American history. But the efforts of Corrective Justice were on its wheel when again there was an interruption, this time by the clouds of ‘Black Codes’ and ‘ Jim Crow Laws’. Then came the case of Plessey Vs Fergussen in which the Court laid dawn the doctrine of ‘Separate but equal’ and which took later on almost 60 years to change the judicial chemistry regarding affirmative action programs in the Brown’s case. Under Johnson and Nixon administrations measures were taken to further strengthen the affirmative action policies.
Conclusion:-
Even in the American context, from Plessy v Fergussen and Equal protection clause to Grutter V Bollinger and Parents v Seattle Community , no clear guideline are available. There is evidence that the term “Politics” is very much prevalent and at the same time dominant in both the countries. Both the Indian and American experience shares many of the things in common and the same comparison may produce some precious fruits. An attempt through the present article is made by in order to scrutinize the affirmative action programs in both the countries meticulously and briefly. The author wishes good efforts from the governments in order to overcome these vital issues and also to see if the success line of American style could be extended in the Indian Panorama
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