Understanding the term ‘Affirmative Action’

Chandana

Affirmative action is commonly known as reservation policy. In India, it is known as "Preferential treatment" or "Protective discrimination" or "Reverse discrimination" and commonly known as a social betterment tool.

Article 15(4) of the Indian Constitution guarantees the state to make special provisions for Scheduled Caste and Scheduled Tribes, and Socially and Educationally Backward Classes.The main purpose of this policy is to promote and assist those people who were in the past deprived by unfair discrimination to fulfill their highest potential. Though our Constitution Of India speaks about affirmative actions in various articles mentioned, this policy dates back to the British Colonial era.

Who are considered as socially and educationally backward classes?

Before granting the reservation the fundamental question which is to be answered is who is considered as socially and educationally backward classes. It is the duty of the state to decide on this question as who are considered as socially and educationally backward classes.

From various judicial pronouncements which have been given by the courts it came into following conclusion:

1. People should be both socially and educationally backward.

2. Poverty alone cannot be the test for backwardness,

3. Backwardness should be comparable.

4. Caste may be considered as a relevant factor but it cannot be the sole paper or the dominant criterion.

5. In determining who shall be considered as socially and educationally backward classes factors such as poverty, occupation, place of habitation shall be taken into account.

Analysis of two important cases relating to reservation policy.

In M.R Balaji v. State of Mysore, This was the landmark case on reservation, under this case in the state of Mysore reservation was made for backward classes for the state admission to the state medical and engineering colleges. Reservation in case for backward and more backward classes was 50%; in Scheduled caste it is 15%; and for scheduled tribes it is 3% and altogether 68% of seats were reserved in medical, engineering and other technical colleges for the weaker section of the society and leaving only 32% seats for the merit pool. The defence that the state argued that it does not contain any limitation on the state's power to make reservations and it also further holds the view that it can even make cent percent of reservation in favour of backwards classes if it is so demanded. The court rejected this argument and also rejected 68% of the reservation.

Indra Sawhney V. Union Of India (Mandal Commission)

In this case, the question of reservation for post of backward classes has been dealt with. The mandal commission was appointed in 1979 by the Government of India in terms of Article 340 of the constitution to investigate into the matters of socially and backward classes. On of the recommendation which was given by this committee beside the SCs and STs, and for other backward classes(OBCs) which nearly constitute of 52% of total population , 27% government jobs should be reserved so that total reservations for all SCs, STs and OBCs would amount to 50%. On Aug. 13, 1990 V.P Singh Government issued a memorandum accepting the mandal commision recommendation and announcing 27% reservation for socially and educationally backward classes in vacancies in civil post and services under the Government of India. In 1991, the Narasimha Rao Government modified the above memorandum in two aspects:

1. Poorer sections among the backward classes would get preference over the other sections.

2. 10% of vacancies would be reserved for other economically backward sections of the people who were not covered by any existing reservation scheme.

The constitutional validity of this memorandum was challenged in the supreme court and supreme court reached the following conclusion:

1. Overall reservation in a year is now limited to a maximum of 50%.

2. Persons who have benefited from the reservation which has been provided to them earlier and thus improved their status should not be allowed to the benefit of reservation over and over again.

3. Promotions are to be merit- based and are to be excluded from the reservation rule.

4. Certain posts are to be excluded from the reservation rule and recruitment to such posts is to be merit based.

5. Minimum standards have to be laid down for recruitment of reserved posts.