Compensatory Discrimination: Judicial Response in India

Cochin University Law Review Vol. XV, 1991 p. 32-66

Compensatory Discrimination: JudicialResponse in India and America

B. RAJAGOPAL*

The Central Government has implemented the "MandalCommission Report' l as part of a continuing compensatory dis-crimination programme. But the Supreme Court stayed that orderon first October 1990. Does this represent the tussle betweenthe court and the national political process creating a familiardemocratic dilemma: 2 an antidemocratic court, thwarting thewill of the majority 3 in the name of the Constitution? The ques-tion naturally arises whether the court is justified in doing whatit did. It may be argued that the court is justified because itis the only way to maintain the proper balance between demo-cracy and constitutionalism. For this purpose American casesdealing with similar issue can also be examined to understand

Advocate, High Court, Madras.The H Backward Classes Commission Report submitted by B. P.Mandal, under Article 340 of the Constitution in 1980. (hereinaftercited as the "Mandal Report"). The Report had recommended that27% of all jobs in Central Government, public sector undertakings,nationalised banks and certain private sector undertakings, must bereserved for 'Other Backward Classes'.See generally, R. Dahl, A Preface to Democratic Theory (1956);R. Scigliano, The Supreme Court and the Presidency (1971), pp.9-10.

3. 'Majority' is used here to refer to the 'Other Backward Classes'(OBC's) since they constitute 52% of the population. See the MandalReport supra, n. 1 at 63. This added to the 22.5% population ofScheduled Castes and Scheduled Tribes (SC's & ST's) comes to74.5% of the population. Consequently any provision in their fav-our is a majority wish.

C.U.L.R. B. Rajagopal 33

the relevant issues because of the obvious structural and insti-tutional similarities between India and America. A study of thesystem of compensatory discrimination will help to learn moreabout democracy because the 'battle lines have always beendrawn along group lines and the groups' conduct generally de-termines the contours of a democracy, 4 in states where thereis political equality, as in India or America.

Compensatory Discrimination in India: Constitutional Setting

The Indian Constitution, it is often said, is the longest con-stitution in the world. The reasons for such an approachto the Constitution by our framers are, as Professor Franck said,threefold;.5 firstly, it was intended to "help the courts... . toadjudicate the relationship between the individual and the State"by "limiting" the discretion to depart from the text; secondly,in a country where the social fabric is rent by fissiparous ten-dencies, a detailed setting out of the rights of each can havea hortatory effect in reassuring and educating the people; andthirdly, the post world war II momentum had a strong huma-nistic impact. It is against this historical background that theequality clauses in the Constitution, have to be viewed. It hasbeen said, 6 that the "Indian Constitution is first and foremosta social document" and that the Fundamental Rights and Direc-tive Principles of State Policy are the "conscience of the Con-stitution". 7 These words have frequently been used to departfrom the language of the Constitution in a non-interpretivist

The clearest example of the successful use of compensatory dis-crimination for this purpose is found in the southern states, especiallyTamil Nadu. Caste groups and associations have 'democratised' thestate. For a detailed account of the changes in power structures,See, Vol. IV, Mandal Report, Supra n. 1 at 271. See generally, Re-port of the Tamil Nadu Backward Classes Commission (A. N.Sattanathan as Chairman).

See, Thomas M. Franck, "Due Process in Developing Nations" inBernard Schwartz (Ed.) The Fourteenth Amendment (1970), pp.195-196.See Granville Austin, The Indian Constitution; Cornerstone of aNation (1966), p. 50. (hereinafter cited as Austin).Ibid.

34 Cochin University Law Review [1991]

desire to do 'social justice', by the Supreme Court. But thenature of the Constitution, especially the Fundamental RightsChapter, does not allow much less warrant, such a freewheelingattitude towards its interpretation.

The Right to Equality, under Indian Constitution is cover-ed by Articles 14 to 18. In the Constituent Assembly, Article14 did not provoke a discussion, whereas Articles 15, 16 and 8

29 (2) attracted prolonged discussions and much controversy . 9

The framers of the Constitution were particular at making theirterms as clear as possible to avoid any unwarranted judicial in-terpretation. 10 That is why, the language of these articles, ascompared to that of Article 14, is more specific and categorical.Article 14 embodies a universal rule by stipulating that theState shall not deny to any person equal protection of the lawsor equality before the law. Article 15 (1) amplifies this generaldoctrine by specifically outlawing discrimination by the Stateon ground only of religion, race, caste, sex, place of birth orany of them. This onus of non-discrimination is placed upon alleducational institutions receiving aid out of State funds underArticle 29 ( 2 ) However Article 15 (4) creates an exceptionto this principle of equality by providing that "nothing in thisarticle or in clause ( 2 ) of Article 29 shall prevent the Statefrom making any special provision for the advancement of anysocially and educationally backward classes of citizens or forthe Scheduled Castes and the Scheduled Tribes". Similarly,while Article 16 (1) provides for equality in the sphere ofemployment under the State, and Article 16 ( 2) outlaws classi-fication on specific grounds of religion, race, caste, sex, descent,place of birth, residence or any of them, Article 16 (4) pro-vides the exception to the rule by stating that "nothing in thisarticle shall prevent the State from making any provision forthe reservation of appointments or posts in favour of any back-

See J. K. Mittal, "Right to Equality and the Indian Supreme Court",14 Am. J. Comp. L. 439 (Summ. 1965). (hereinafter cited asMittal).Ibid.Ibid.

B. Rajagopal 35

ward class of citizens which, in the opinion of the State, isnot adequately represented in the services under the State".

That such a detailed scheme of rights and exceptions wasadopted is not surprising. India was a land of communities andminorities — racial, religious, linguistic, social, and caste.''If we believed that in our 'federation of minorities' a declara-tion of rights was as necessary as it had been for the Ameri-cans when they established their federal constitution, 2 the rea-sons for providing exceptions to those rights — unlike America— in the Constitution itself are two fold; firstly, it is the reco-gnition of the granting of political equality to all by adultsuffrage.13 unlike in America where it was left to the S apremeCourt 14 to bring about political equality; secondly, as a corol-lary, the political power had to be re-distributed ' s in propor-tion to the size of the organized groups which existed prior to1950. K. M. Panikkar 16 said about adult suffrage that it "hassocial implications far beyond its political significance". Withsuch a recognition, it was wishful thinking to hope for older,local loyalties to break down and for assimilation of disparate

See Austin, supra n. 6 at 54.Ibid.See Article 326.See Reapportionment Cases — Baker v. Carr 369 U.S. 186 (1962)and Reynolds v. Sims, 377 U.S. 533 (1964). See for a discussion,Archibald Cox, The Court and the Constitution (1987), pp. 288-304. (hereinafter cited as Cox).Redistribution as a justification for compensatory discrimination pro-grammes is not new. See the cost-benefit table in Marc Galanter,Competing Equalities (1984), pp. 81 and 106. (hereinafter citedas Galanter). However, re-distribution is used here with referenceto political power and not merely confined to resources. This dis-tinction becomes important when the re-distributive effects are foundto have 'democratised' the country by arming the numerical majo-rity with substantive power. In America Reapportionment cases didwhat the political processes failed to do but in India, the redistri-butive effects are for reaching as, what the Reapportionment casesachieved in America, namely one man-one vote principle, had al-ready been implanted in the Constitution itself.See Austin, supra n. 6 at p. 47. K. M. Panikkar was a distinguishedmember of the Constituent Assembly.


groups. Modern Indian political history has been a witness toexactly the opposite trend. As has been correctly pointed out, 17"being the unit of social organization in India, the role of castewas bound to increase under a political system based on adultfranchise". It is then, not surprising, that the exceptions to theequality rule have been used to increase the majority of thepopulation's share in the national bounties and benefits by re-distribution or that traditional channels like caste were usedfor that purpose. In fact, as Professor Rajni Kothari observes, 18

"those in India who complain of casteism in politics, are reallylooking for a sort of politics which has no basis in society".

It is in this light that the exceptions to the equality clausesalong caste lines and the permission by the Supreme Court tosuch a course — however grudging it may be, — have to beviewed. Unless these constitutional principles are viewed in thisway, we run the risk, not only of mis-understanding the reasonsfor judicial behaviour but also of a failure to appreciate therole of judicial function, in the area of compensatory discri-mination. Thus, judicial behaviour has been analysed in termsof different concepts of equality, such as formal, weighted andproportional group equalities„" as the true meaning of equa-lity clauses, or in terms of a group-rank differentiation of caste. 20

What appears closer to truth is the inherent tension betweenmajoritarian wishes and a charter of rights`'-' and striking a

See the Mandal Report, supra n. 1, at 18.Ibid.See Gregory H. Stanton, "Three Concepts of Equality; CompensatoryDiscrimination in Indian and American Constitutional Law", 27,Ind. J. Pub. Admn. 4 Jan - March 1981. (hereinafter cited asStanton).See Galanter, supra n. 15 at pp. 189-190. See also Report of theKarnataka Backward Classes Commission (L. G. Havanur, Chair-man), in five volumes, 1975, which makes the same distinction.(id., 60). Galanter however acknowledges the difficulty of main-taining such a distinction. (supra n. 15 at p. 190).To the extent that popular ligislation which clashes with individualrights have expressly been declared to be pro tanto void, in Article13, the fundamental rights chapter can be viewed as the most

(f. n. contd.)

C . U. L .R . B. Rajagopal 37

balance between them by the judiciary. 22 It can also be a dis-tinction between, — as Judge Abe Fortas remarked, 23 "theconcept of equality or egalitarianism in its total and awesomegenerality and equality of right as a constitutional doctrine". 24

On a legal plane, the same can be viewed as a clash betweenFundamental Rights and Directive Principles of State Policy,but such a view is legally suspect, since the present trend isto harmonise the two chapters. 25 But reference to the tensionbetween fundamental rights and majoritarian wishes is found inunambiguous terms in Minerva Mills v. Union of India, where,Chandrachud, C.J. observed: "(As) observed by Brandies J.,the need to protect liberty is the greatest when Government'spurposes are beneficient. If the discipline of Article 14 is with-drawn and if immunity from the operation of that article isconferred, not only on laws passed by the Parliament but onlaws passed by the State Legislatures also, the political pressuresexercised by numerically large groups can tear the countryas under by leaving it to the legislature to pick and choose fav-oured areas and favourite classes for preferential treatment". 26These remarks are most important and they clearly acknowledgethe anti-majoritarian nature of fundamental rights and ipso facto,

`anti-democratic' part of the Constitution. See for a functional viewof the same idea, Jesse H. Choper, Judicial Review and the NationalPolitical Process (1980), Ch. 1 and 2. (hereinafter cited as Cho-per). Though Choper does not declare individual rights as anti-de-mocratic, in so far as he ascribes the main function of judicial re-view, which he describes as the "most anti-majoritarian of all ex-ercises of national power", to securing individual rights, it virtuallyamounts to what has been expressed above.It is argued subsequently that the Supreme Court, in M. R. Balajiv. State of Mysore, A.T.R. 1963 S.C. 649, did exactly strike sucha balance.See Abe Fortas, "The Amendment and Equality under Law", inBernard Schwartz (Ed.), (1970), p. 105.This distinction was always obfuscated by the Court and it reachedits natural culmination in State of Kerala v. N. M. Thomas A.I.R.1976 S.C. 490. See for details, infra.See Keshavananda v. State of Kerala (.1973) 4 SCC 225; MinervaMills v. Union of India, A.I.R. 1980 S.C. 1789.Minerva Mills v. Union of India, A.I.R. 1980 S.C. 1789 at pp. 1808-1809. (emphasis added),

38 Cochin University Law Review [19911

that of judicial review. In this light, the attempts by the SupremeCourt to strike a balance between democracy and constitutionallimitations upon it in the sphere of compensatory discriminationhas to be looked at.

Judicial Response to Compensatory Discrimination:

1. Dorairajan to Balaji

Mr. T. T. K'rishnamachari was prophetic when he said,regarding Article 16 (4), that it would be "a paradise for law-yers- 27 . Virtually all of the litigation about compensatory dis-crimination policies in education has been about reservationsin medical and engineering colleges for the backward classes,28whereas 16 (4) has been a fertile ground for Scheduled Castesand Scheduled Tribes. But it was left to the Supreme Court toprompt the political process to carve out an exception toArticle 15 (1). Thus, in State of Madras v. ChampakamDoraira jan, 29 the Supreme Court struck down a communalorder of the Madras Government reserving seats in medical col-leges and in Venkataramana v. State of Madras, 3° the Courtstruck down part of a similar communal quota in regard toGovernment posts. However, both judgements were reversed bythe first constitutional amendment by incorporating Article15 (4). 31 The Court in these two cases, was typically anti-

VII Constituent Assembly Debates, p. 699.See Galanter, supra, n. 15 at 64.A.I.R. 1951 S.C. 226. In an earlier case, the Punjab High Courthad upheld reserved seats for harijans. See Om Prakash v. Stateof Punjab, A.I.R. 1951 Punjab 93. 97. In Golak Nath v. State ofPunjab, A.I.R. 1967 S.C. 1643 at 1706, it was observed that Cham-pakam Case could have been decided by using the doctrine ofclassification even in the absence of Article 15 (4).A.I.R. 1951 S.C. 229.The Constituent Assembly had rejected the inclusion in the origin-al Constitution of a provision similar to Article 15 (4). Prof. K.T. Shah who moved the amendment argued for including onlySC's & ST's and Dr. Ambedkar, Chairman of the Assembly opposedit as an opening for "segregated facilities". However, the wordingof Article 15 (4) was keyed to that of Article 340. See Nehru's

(f. n. contd.)


majoritarian by striking down quotas, and the Parliament wastypical equally in quelling that challenge. Thereafter, until today,the conflict between the Supreme Court and the political pro-cess has been confined to whether 'caste' can be the sole criterionof 'backwardness'. This conflict can be viewed basically as onebetween an assertion by the organized caste groups of theirpolitical power by virtue of their numerical majority and theattempt by the Supreme Court to dilute those assertions byinsisting that 'caste' is not 'class' and thereby protecting the coreof Articles 15 (1) and 16 (1) and (2). This conflict reachedits natural culmination in M. R. Balaji v. Mysore. 32 This caseis the locus classicus of compensatory discrimination and thecourt's approach is a tribute to its capacity to understand itsrole in our society.

The events leading upto the case started in 1959 33 andBalaji were nothing but denouement. A Government orderhad reserved 68 per cent of the seats thereby designating 88percent of the population as reserved. Six applicants to medicalcollege and seventeen applicants to engineering college filedwrit petitions challenging the Government order and the courtstruck it down. The court held that the order was invalid be-cause "the basis adopted by the order in specifying and enumer-ating the socially and educationally backward classes of citizensin the State is unintelligible and irrational and hence outside

remarks at 9830, Parliamentary Debates, Vol. XII-XIII, (Part M.Nehru observed that 'economic backwardness' was excluded onlybecause of that reason. Interestingly, he observed that "socially"is a much wider word, including many thing and certainly includ-ing 'economically'. (id. at 9830).1963 A.I.R. S.C. 649. This case was 'clarified' in Heggade Janar-dhan Subbarye v. Mysore, A.I.R. 1963 S.C. 702. (that the reser-vation for SC's & ST's was not to be taken as having been quash-ed in Mali). See, for a criticism of this clarification, H. M. Seer-vai, Constitutional Law of India (3rd ed., 1983) Vol. I, 412-413.(hereinafter cited as Seervai).In Ramakrishna Singh Ram Singh v. State of Mysore, A.I.R. 1960Mys. 338, the Mysore High Court struck down a 1959 govern-ment order which had reserved 65 per cent of the seats, therebydesignating over 90 per cent of the population as 'backward',declaring it as a "fraud on the Constitution". See for a narrativeof the events, Stanton, supra, n. 19 at 7-10.

40 Cochin University Law Review [1.991]

Article 15 (4)". The court also held that the extent of the re-servation was unreasonable and a fraud on the power conferredby Article 15 (4). The court clearly said that Article 15 (4)is an exception to Articles 15 (1) and 29 (2). The court'seagerness to dilute the assertions of the political majority isevident in the way in which it repudiated 'caste' as the soledeterminant of backwardness and so prevented it from beingequated with 'class'. At the same time keeping in view the per-ceived group ineqalities, it could not uphold individual rightsabsolutely. On a fundamental level it had to strike a compro-mise between conflictirw, democratic forces — that of majorit-arian wishes on the one hand and that of individual rights asthe cornerstone of a libertarian democracy on the other. Forexample, the court spoke of "adjusting" the interests of theweaker sections of the society to "the interests of the commu-nity as a whole' and declared that" a formula must be evolvedwhich would strike a reasonable balance between the severalrelevant considerations". 34 Before Balaji, in General Manager,Southern Railway v. Rangachari 35 the court had held thatreservation extended to selection posts. The implication of thiswas that Article 16 (4) has a re-distributive function at all levels.Backward classes required not only that they should have ade-quate representation in the lowest rung but also in selectionposts as well. In this case the court acknowledged the powerof the legislature to re-distribute national bounties over individualrights and thereby conceded some ground which it later doc-trinally recovered in Balaji.

2. Balaji to Thomas

In response to Balaji, the Mysore Government formulatedanother test for designating backwardness which had excludedcaste as a criterion. This test was challenged and upheld bythe Mysore High Court in Viswanath v. State of Mysore. 36 Indicta, that court recommended that 'caste' ought to have been

A.I.R. 1963 S.C. at 663. (Emphasis added).A.I.R. 1962 S.C. 36.A.I.R. 1964 Mys. 132.


added to the new test. But this view was repudiated by theSupreme Court in Chitralekha v. State of Mysore.37 Subba .ao,J. said: "We would hasten to make it clear that caste is onlya relevant circumstance in ascertaining the backwardness of aclass and there is nothing in the judgement of the court whichprecludes the authority concerned from determining the socialbaCkwardness of a group of citizens, if it can do so withoutreference to caste"... . This case is a landmark in so far asit was a very brave' attempt, — perhaps the bravest yet — bythe court to stop re-distribution along traditional lines and in-clude within the recipients persons from non-traditional groups.But the attempt was a short-lived exercise because it was un-historical 38 and it failed to temper its ideal anti-majoritarianrole with a little pragmatism. This is very important, as thecourt has peculiar institutional constraints such as exhaustionof institutional capital by popular non-compliance while exerciseing its anti-majoritarian power" and what is needed is a balancesuch as the one the court struck in Balaji.

The combined effect of Balaji and Chitralekha was feltdifferently in different states. Thus, while the Kerala HighCourt 40 took a cautious line, deferential to the state govern-ment, the Andhra Pradesh High Court ." took a more aggres-sive stand, more in tune with the Chitralekha line. 42 The Sup-

A.I.R. 1964 S.C. 1823.It was unhistorical in two ways: firstly because, it ignored thetraditional caste groups' role in shaping the compensatory Discri-mination Policy in India; and secondly it had probably no supportin the constituent Assembly Debates. For a detailed analysis ofthe first, see Galanter, supth n. 15, Ch. 2, 5 For support of thesecond, see Havanur Commission Report (1975) supra, n. 20. Seealso Galanter, supra n. 15 at 194.See Choper, supra n. 21, Ch. 3.See State of Kerala v. Jacob Mathew, I.L.R. 1964 (2) Ker. 53;Laila Chacko v. State of Kerala, A.I.R. 1967 Ker. 124; HariharanPillai v. State of Kerala, A.I.R. 1968 Ker. 42.See Dasa Rayadu v. A. P. Public Service Commission A.I.R. 1967A.P. 353; Sagar v. State of A.P. A.I.R. 1968 A.P. 165.Galanter has said that the difference in judicial resnonse corres-ponds to the contracting fashions in which the state governmentshandled the matter. See Galanter, supra n. 15 at 197.


reme Court in Devadasan v. Union of India, 43 considered thescope of Article 1 .6 (4) and decided that it was an exceptionto Article 16 (4) and (2). The court relied on Balaji and saidthat reservation ought to be less than 50 per cent if the indi-vidual rights are not to be rendered "illusory". In so far asthe case dealt with the "carry forward" rules with respect toScheduled Castes and Scheduled Tribes, the judgement teachesus less about our concern; of numerical majorities overridingindividual rights." It was in P. Rajendran v. State of Madras,.45that the court showed, as Robert Dahl stated, that "(it) wouldbe most unrealistic to suppose that the court would, for morethan a few years at most, stand against any major alternativessought by a lawmaking majority". ,46 In this case, the courtupheld the use of castes as the units by which Madras's back-ward classes were designated. It said, "(I)t must not be for-gotten that a caste is also a class of citizens and if the casteas a whole is socially and educationally backward, reservationcan be made in favour of such a caste on the ground that itis a socially and educationally backward class within the mean-ing of Article 15 (4)". The court in this case certainly movedaway from a classic compromise position as in Balaji, and putits stamp of legitimacy upon traditional channels of redistribu-tive articulation. Its judicial review power lost much of its tradi-tional sting and the count, in gtead of fashioning substantiveprinciples, took upon a policing function.47

1964 A.I.R. S.C. 179. See the dissenting o pinion of Subba Rao, J.where he held Article 16 (4) to be outside 16 (1) & (2). UntilN. M. Thomas v. State of Kerala A.I.R. 1976 S.C. 490, his was alonely voice. In Thomas, Krishna Iyer J., referred to Subba Rao,J's dissent in Devadasan.It is the reservation for Other Backward Classes (OBC's) whichconcern us primarily as they constitute the majority of the, popul-ation. See supra n. 3.A.I.R. 1968 S.C. 1012.See Robert Dahl, "Decision making in a Democracy: The SupremeCourt as. National Policy Maker", 6 Journal of Public Law 285(1958).This theory of judicial review is advocated by John Hart Ely,Democracy and Distrust (1980) where he advocates a theory of.equal access and equal result, as procedural view of judicial review.(hereinafter cited as Ely).


However, in State of A.P. v. Sagar,48 the court retreat-ed again. This retreat is seen when Shah J., said: "Indetermining whether a particular section forms a class,of A.P. v. Sagar,48 the Court retreated again, and Shah J.,said, "In determining whether a particular section forms a class,caste cannot be excluded altogether. But in the determinationof a class a test solely based upon the caste or communitycannot also be accepted". Justice Shah's rule was clarified inTriloki Nath Tiku v. State of J & K, 49 where the court observ-ed that caste cannot be the exclusive test of what is a class.In both Sagar and Triloki Nath, the court walked on a tightropeand struck a good balance between conflicting forces. The courtalso implicitly acknowledged multiple tests for determining back-wardness by ruling out caste as the only test. In Periakaruppanv. State of Tamil Nadu, 50 the court relied on Rajendran, andJustice Hegde (as he then was) bluntly observed: "a caste hasalways been recognized as a class". But the court recommend-ed review of the policies and said that a class cannot be per-petually treated as backward. In State of Andhra Pradesh v.Balaram, 51 a two-judge bench reiterated that caste units areperMissible and said that a caste may be a backward class notwithstanding the presence in it of a "few individuals (whoare) .... both socially and educationally above the generalaverage". By neglecting the 'creaming' effect, the court in effectargued that a few, individuals may be unfairly enriched at thecost of few other individuals. Quite apart from the fact that,such a decision is one of policy, which the court ought not tomake, the court also gave up its traditional role — that ofsafeguarding individual rights and thereby weakened its powerof judicial review.

In Janki Prasad Parimoo v. State of J & K, S2 the courtupheld the use of caste units again and said economic consider-ations should not be above other considerations "which go toshow whether a particular class is socially and educationallybackward". Interestingly it wanted to avoid giving poverty pri-macy, since it wanted to avoid too large a number of recipients.

A.I.R. 1968 S.C. 1379.A.I.R. 1969 S.C. 1.A.I.R. 1971 S.C. 2303.A.I.R. 1972 S.C. 1375.A.I.R. 1973 S.C. 930.

44 Cochin University Law Review 1.1991]

This approach makes it appear as if the court understood itsrole clearly, by favouring a large content of 15 (1) to be keptintact. In State of U.P. v. Pradip Tandon, 53 the court sudden-ly in a spurt of confusion declared "(The) socially and educa-tionally backward classes of citizens are groups other than groupsbased on caste". Since the remarks are obiter dicta, they pro-bably reflect an urge rather than advance any principle.

3. Thomas to Karmachari Sangh

It has been said 54 that much of the earlier understandingof constitutional policies of compensatory discrimination is castinto doubt by the court's ruling in State of Kerala v. N. M.Thomas. 55 The court seemed pre-determine 56 to re-examinethe old postulates relating to Articles 15 (4) and 16 (4). Thecase came up on a certificate granted by the Kerala High Court.The petitioner before the High Court, N. M. Thomas, was alower division clerk in the Registration department. For pro-motion to the upper division on the basis of seniority, lowerdivision clerks had to pass a test in three subjects. The peti-tioner complained that although he had passed all the testsby 1971, he had not been promoted to the upper division, be-cause Scheduled Caste lower division clerks who had not pass-ed the tests had been promoted, under a state governmentrule. 57 Out of 51 vacancies in the category of upper division

A.I.R. 1975 S.C. 563.See Galanter, supra n. 15 at 382.A.I.R. 1976 S.C. 490.The Court clearly knew that Dorairajan (7 judges), Rangacluiri(5 judges), Balaji (5 judges) and Rajendran (5 judges) cases hadbeen decided unanimously by Constitution Benches and if it hadto extensively alter the doctrines therein laid down, it had to con-stitute a larger bench. The bench infact consisted of 7 judges. (RayC.J., Khanna, Mathew, Beg, Krishna Iyer, Gupta and Fazal Ali,J.J.). See for a criticism of the constitution of the Bench, Seervai,supra n. 32 at 430-431.Rule 13 AA, promulgated in 1972: "Notwithstanding anything con-tained in these rules, the Government may, by order, exempt fora specified period, any member or members, belonging to a Sche-duled Caste or a Scheduled Tribe, and already in service, frompassing the tests".

C.U.L.R. B. ,R a kigopal 45

clerks, 34 were filled by Scheduled Caste persons who had notpassed the tests. He challenged it, and the Kerala High Court.58struck down the rule as not within the ambit of Articles 16(4) or 15 (4), and violative of Article 335, 59 and observed:"(R)eservations had already been made.... what has beenattempted by Rule 13AA is to exempt persons from possessingthe necessary qualifications.... The action therefore cannot besupported under Article 16 (4)". On appeal to the SupremeCourt, counsel for the state argued that the exemption for tak-ing tests, need not be subsumed under Article 16 (4)'s pro-vision for reservations, but could be justified as a reasonableclassification under Article 16 (1). The court decided by amajority of five to two. 60 that the rule was valid and reversedthe Kerala High Court's decision, issuing in the process, sevenseparate opinions. Justice Beg thought that Article 16 (4),would itself authorize the state's provision while Chief JusticeRay, Justices Mathew, Krishna Iyer and Fazal Ali, accepted theclassification argument advanced by the state. The case pre-sented hard choices if the. Government rule had to be upheld.The first choice was to treat the provision as 'reservation' underArticle 16 (4). But the difficulties in toeing that line were twofold; firstly to treat the 'exemption' as 'reservation' which theKerala High Court had declined to do, and secondly, if it istreated as 'reservation', to avoid conflict with earlier authori-tie's6' limit on quantum of reservation; and in the present case34 out of 51 seats was more than the 50 per cent quantum.The second choice was to treat the provision as not reservationbut clasiification under Article 16 (1). But again the difficultywas that the power to classify under Article 16 (1) did notinclude a power to employ those classifications specifically for-

A.I.R. 1974 Ker. 549.Article 335 reads: "The claims of the members of the SC's & ST'sshall be taken into consideration, consistently with the mainten-ance of efficiency of administration, in the making of appointmentsto services and posts in connection with the affairs of the Unionor of a State".The dissenting judges were Khanna and Gupta, JJ.See supra n. 56 for the cases cited there. The rule had consistentlybeen held to be 50%.


bidden in Article 16 (2). The only way to overcome this isby holding that Scheduled Castes and Tribes do not constitutea classification on the basis of `caste'. 62 That course wouldobviate a clash with earlier authorities and would uphold theprovision. The court exercised its option and chose the lattercourse, with Justice Beg alone concurring on traditional grounds.

Chief Justice Ray said that such a classification is to pro-vide 'equal opportunity' in the light of Articles 46 and 335.Justice Mathew said that the 'equality of opportunity' is actual-ly 'equality of result'. He further said, "If equality of oppor-tunity guaranteed under Article 16 (1) means effective materialequality, then Article 16 (4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to whichequality of opportunity could be carried, viz, even up to thepoint of making reservation". 63 Both the opinions clearly obfus-cate the distinction between equality as egalitarianism and equa-lity as a constitutional doctrine. 64 By such obfuscation, bothof the judges failed to protect individual rights and therebyshook the reason for judicial review power, and also tried tobring about egalitarianism which is a policy decision best leftto the political process. Justice Krishna Iyer's opinion is diffe-rent in a crucial way from that of Justice Mathew. 65 WhileJustice Mathew would allow classification under Article 16 (1)for "all members of the backward classes", Justice Krishna Iyerwould confine it to the harij.ans. For other classes, "their onlyhope is in Article 16 (4)". The difference is crucial from there-distributive point of view. By confining the 'other backwardclasses' — which are the majority — to Article 16 (4) alone,

Seervai has said that such a view is wrong. However his mostimportant objection to such a course is that the classification wouldin any case be based on religion — since SC's can only belongto Hindu or Sikh religion — and classification based on religionis forbidden under Article 16 (2) and so the reasoning is invalid.See Seervai, supra n. 32 at 433-434.A.I.R. 1976 S.C. 490 at 519.It is Judge Abe Fortas' distinction, see supra n. 23.See Galanter supra n. 15 at 387.


Justice Krishna Iyer impliedly imposes the 50 per cent limitupon any provision in their favour while freeing the `harijans'from any such constraints; he allows them to enjoy "lesserorders of advantage" under Article 16 (1) in addition to re-servations under Article 16 (4). This is certainly more in thenature of a traditional exercise of judicial review power —that of preventing the majorities and helping the minorities —,than that of Justice Mathew who openly proclaims that com-pensatory discrimination was to fulfill a representative functionfor "all backward classes". 66 Justice Fazal Ali, after opiningthat Article 16 (4) is not an exception to Article 16 (1) saysthat he would liberalize the 50 per cent rule. 67 The amazingthing about the four majority judgements is that all of themdeclared Article 16 (4) as not an exception to Article 16 (1),when they had no need, much less reason, to do so. All fourhad adopted the classification argument and once the provisionis taken out of Article 16 (4), where is the need for 'escaping'from Article 16 (4)? Quantum limit of 50 per cent is inap-plicable to a classification under 16 (1) and the need to treatArticle 16 (4) 'outside' Article 16 (1) arises only if the Keralaprovision was treated as 'reservation', which it was not. As aresult, all the four judgements clearly 'overkill' the issue byproclaiming Article 16 (4) to be 'outside' Article 16 (1) whenit was unnecessary for them to do so.

Justice Beg advanced a traditional view and said that theeffect of Kerala promotion rules is "a kind of reservation".These rules may be viewed as "implementation of a policy ofqualified or partial or conditional reservations" which could "bejustified under Article 16 (4)". 68 Thus, he takes the first choicearticulated above but it is unclear as to how he avoids clashwith earlier authorities' limit of 50 per cent since in the pre-sent case the 'reservation' was far above 50 per cent. Anyhow,Justice Beg advanced a proposition which showed how correct-ly he understood not, only the constitutional scheme but also

A.I.R. 1976 S.C. 490 at 518.Id. at 555.Id. at 524.

48 Cochin University Law Review {1991J

his judicial function. "Article 16 (4) was designed to reconcilethe conflicting pulls of Article 16 ( 1 ) . and of Articles46 and 335 . . . . 69 What Justice Beg did was to strike abalance — which is commendable — but the doctrinal justifi-cation he advances for it is unique and innovative: he 'uses'a constitutional provision, namely Article 16 (4) , which hasbeen the major tool of egalitarian and re-distributive policies,to strike a balance between equality as egalitarianism and equa-lity as a constitutional doctrine. Justice Beg also appears tosay that Article 16 (4) is an exception to Article 16 (1) . 70

Quite apart from the fact that it conflicts with the rest ofthe majority opinions, its major lack is, ironically, the reason-ing adopted by the rest of the majority to prove that. Article16 ( 4 ) is not an exception to Article 16 (1) . Because, if hewas asserting that the provision was 'reservation' under Article16 ( 4 ) , he was compelled to reconcile the facts of this caseto the 50 per cent rule. The only way he could have accom-plished that is by arguing that Article 16 (4) is not an excep-tion to Article 16 (1) and that it was a 'facet' of equality codeand it was "only an emphatic way of putting the extent towhich" Article 16 ( 1 ) can be carried. That he argued exactlythe reverse is a surprise. On the whole, Thomas produced con-flicting opinions but has served a good purpose; that of arti-culating traditionally held interpretations and advancing newtheories.

In K. S. Jayasree v. Kerala, 71 the court upheld a schemeof the Kerala Government, under which members of backwardclasses with an annual income of Rs. 10,000 were excludedfrom reservation benefits. The court held that neither caste norpoverty constituted backwardness, by itself, though both wererelevant. Coming on the heels of Thomas, one would expectdoctrinal innovations but there are none here. What seems evi-dent is a consistent effort to uphold all government schemesin compensatory discrimination, the main object being to ren-

Id. at 522 (emphasis added).Id. at 521.A.I.R. 1976 S.C. 2381.


der adhoc justice on a case by case basis 72 rather than layingdown principles which will keep the fine balance between con-flicting forces. The court at this juncture seems more eager toensure equal results by policing the discrimation polices.,"

4. Karmachari Sangh and After

The next major case is Akil Bharatiya Soshit KarmachariSangh v. Union of India." The case came before the courtimpugning ten circulars issued by the Railway Board fixing re-servation quotas for members of SC's and ST's in promotionposts, including circulars for the 'carry forward' rules. Threejudgements were delivered, with Justice Krishna Iyer writing theleading judgement, dismissing the petitions and upholding thevalidity of the ten circulars. The other two judges were Chin-nappa Reddy, J. and Pathak, J. Krishna Iyer, J.'s judgementhas been termed a "strange mixture of sermon, prophecy andplatform rhetoric". 75 It has also been said' 76 that there is aconflict between Thomas and Karmachari Sangh, in so far asthe former held Article 16 (4) to be not an exception to Arti-cle 16 (1), whereas the latter case did. But such a conflictdoes not seem to arise because the Thomas observations canbe treated as obiter dicta, as the court in that case had upheldthe 'super-classification' argument for which Article 16 (4 )'sconstruction as an exception to Article 16 (1) was irrelevant.Hence the remarks can be considered dicta and any purportedconflict between Thomas and Karmachari Sangh can be resolv-ed.

In fact, in the latter case, the court relied on Thomas, andit only reinforces the above view. Viewed this way, the originalinterpretation of Article 16 (4) was not disturbed in Thomas

See especially, the dissenting opinion of Khanna, J. in State ofKerala v. N. M. Thomas, 1976 A.I.R. S.C. 490 at 510: "Out ofour concern for the facts of one individual case, we must notadopt a construction the effect of which might be to open thedoor for making all kinds of inroads into a great ideal and desideratumlike that of equality of opportunity".See generally, Ely, supra n. 47.A.I.R. 1981 S.C. 298.

See Seervai, supra n. 32 at 443.Id. at 441.


and reiterated only in Karmachari Sangh. For example, KrishnaIyer, J. said in the latter case: "The success of State actionunder Article 16 (4) consists in the speed with which resultoriented reservation withers away as no longer a need, not inthe ever widening and everlasting operation of an exception(Article 16 (4)) as if it were a super-fundamental right to con-tinue backward all the time". 77"Moreover Article 16 (4) isan exception to Article 16 (2)".78 Further, he said that Arti-cle 16 (4) can be viewed as "an amplification of Article 16(1) or as an exception to it". What he really means is that,if in addition to 'reservation' under Article 16 (4), any "lesserorders of advantage" are conferred under Article 16 (1), andthe total result exceeds 50 per cent then 16 (4) can be viewedas "an amplification of 16 (1)". Of course this applies onlyto SC's & ST's. 79 But Article 16 (4) as an exception to Arti-cle 16 (1) arises only when 'other backward classes' are in-volved, for then the 'classification' argument does not arise. AsKrishna Iyer, J. says the carry forward rule "shall not result,in any given year, in the selection of SC & ST candidates con-siderably in excess of 50% . 8 This unfortunately is onlyas helpful as the "all deliberate speed" language used in Brownv. Board of Education. 81 Despite all this, if Krishna Iyer J.,said that "even though we would, we could not, and even ifwe could, we would not" depart from Thomas, it is truly sur-prising since he already had departed; for in Thomas he hadheld SC's to be not castes, whereas in the present case he said"a verdict need not be' rested on the view that SC's are notcastes"._82

A.I.R. 1981 S.C. 298 at 306 (emphasis added).Id. at 322.See supra n. 65.A.I.R. 1981 S.C. 298 at 321.347 U.S. 483 (1955). See for a discussion infra.A.I.R. 1981 S.C. 322. See further id; "Also a caste, subjected quacaste, to the most humiliating handicaps may be a backward classalthough the court will hesitate to equate caste with class exceptwhere the degree of dismalness is dreadful". This is a tezitationof Mall, and found subsequently in Thomas, that 'Backward Classes'should be comparable economically and educationally to SC's &ST's.


This is the actual conflict with Thomas. Justice Pathak'sjudgement has been termed to be a dissenting judgement incontent, 83 if not in form. He also committed the error oftreating Thomas and Devadasan as hostile and said, "(as) theposition is not clear, and in any event, as my learned brothers,have taken a definite view in favour of the 'carry forward rule",he was dismissing the petitions. Justice Chinnappa Reddy'sopinion as well as that of Krishna Iyer, J's, distinguishing Balajiand Devadasan on the basis that in both, the viciousness ofthe impugned rule was based on the "actual working" of therule rather than any "theoretical consideration". If by thatstatement, it is meant that, a person who challenges an allegedinfraction of the equality rule, has to prove an actual previousabridgement of equality to succeed, it amounts to shifting theonus of proof and is plainly legally inconsistent. 84 Finally,Krishna Iyer J., made some important observations regardingthe use of Article 16 (4): "To lend immortality to the reser-vation policy is to defeat its raisond'etre: to politicise this pro-vision for communal support and party ends is to subvert thesolemn undertaking of Article 16 (1), to casteify 'reservation'even beyond the dismal groups of backward — most people,euphemistically described as SC & ST, is to run a grave con-stitutional risk. Caste, ipso facto, is not class in a secularstate". 85 These remarks clearly express the concern the courtought to have in protecting the core of equality clauses byexplicitly condemning the use of compensatory discrimination asa tool of the majority. Also, by rejecting caste as the sole de-terminant of backwardness, the court expressed itself in a waywhich can only mean that it was concerned about its ownrole in tackling 'steamroller' wishes. The court was clearlyanti-majoritarian though the case dealt broadly with minorities,namely SC's.

The court was expected to resolve the so-called 'conflict'between Thomas and earlier cases in K. C. Vasanth Kumar v.

See Seervai, supra n. 32 at 442.See Kathi Raning Rawat v. Saurashtra, A.r.R. 1952 S.C. 123.(that there is no presumption that any action taken under Article16 was reasonable as there was in any action taken under Article14). See also Jagdish v. Union, A.I.R. 1980 S.C. 820 at 853.A.I.R. 1981 S.C. 298 at 306 (emphasis added).


Karnataka. 86 It has been said that ut is hoped that the casewill have no successor in the history of our Supreme Court. 87

In that case, the petitioners challenged the Karnataka Govern-ment's orders reserving for backward classes 66% of seats ineducational institutions under Article 15 (4) and 68% of postsin public employment under Article 16 (4). On 8 May 1985, theJudges88 acceded to the request of the Government of Karna-taka to lay down guidelines for the commission to be appoint-ed by the Government for laying down "nationally acceptableand constitutionally valid criteria for backwardness". The resultis that there are five opinions which are not judgements. 89 butas Chandrachud, C.J. said, "well-meaning innovations". Never-theless, the opinions expressed are relevant in examining judi-cial attitude towards compensatory discrimination. Sen J., andVenkataramiah J. did not make any reference to the proposedcommission and the latter held that Articles 15 (4) and 16(4) were exceptions and that reservation exceeding 50% wasinvalid. Sen J. supported "economic backwardness" and saidcaste should be used only for purposes of identification of per-sons. Desai J., too said: "The only criterion which can be realis-tically devised is the one of economic backwardness". ChinnappaReddy, J's opinion reflects a confusion about the purpose ofthe 50% rule, when he says that if reservation exceeds 50%,"there is neither statistical basis nor expert evidence to supportthe assumptions that efficiency will necessarily be impaired".The truth is, if reservation exceeds 50%, it would cease to bean exception and merit or efficiency has nothing to do with50%. However, he advocates "class poverty and not individualpoverty" as the "primary test". Chandrachud, C.J. lays down

A.I.R. 1985 S.C. 1495.See Seervai, supra, n. 32, 'Supplement to 3rd edition' (1988), p.272.Chandrachud, C.J., D. A. Desai, Chinnappa Reddy, A. P. Sen andVenkataramiah, JJ.See e.g., Desai, J's opinion: "This is not a judgement in a lis inan adversary system. .. . This does not purport to be an exhaustiveessay on guidelines but may point to some extent, the directionin which the proposed commission should move". See for a tren-chant criticism of such a modus operandi, Seervai, supra n. 87.

B. Rajagopal 53

different guidelines for SC's & ST's and other backward classes.For the former, he would apply the income criterion after 2000A.D. whereas for the latter, they should not only satisfy a meanstest but also be comparable to the SC's & ST's in the matterof their backwardness. 90 He also suggested that there shouldbe a review every five years. All the opinions show an under-lying concern for the gradual erosion of equality clauses bythe aggressive use of 'equalising' clauses by the political majo-rity and all the opinions exc1tpt Chinnappa Reddy, J's markedlymove away from a policing perspective of their own functionto a more traditional perspective of their function — namelythat of safeguarding individual rights by discouraging the useof traditional groups as either beneficiaries of compensatory dis-criminaton or as levers of democratising the society.

After Vasanth Kumar, the Court has not delivered anylandmark decision. A few cases have been decided. 91 A notabledecision is P & T SC's & ST's Employees Welfare Association v.Union,.,92 where Venkataramiah J., held that the withdrawal ofa scheme of promotions for SC's & ST's violates the equalityclause of the Constitution. This is another instance of the obfus-cation referred to above 93 and presents the problem of reser-vation, a constitutional challenge. In Deepak Sibal v. PunjabUniversity, 94 a two judge bench relied on Balaji and held: "theprovision of 15 (4) does not. . . . reserve the majority of theseats in an educational institution at the cost of the rest ofthe society". One can see how Balaji is still being consideredgood law despite a spate of confused rulings in the 1970's.

It is difficult to see a pattern in thecompensatory discrimination. The effort to

judicial approach todevalue 'caste' as a

See Balaji case, supra n. 32 where this origBharat Sevashram Sangh v. Gujarat, A.I.R.Prakash et. al. v. Haryana, A.I.R. 1986 S.C.Union, A.I.R. 1989 S.C. 48; Asif HameedS.C. 1988.A.I.R. 1989 S.C. 139.See supra n. 23.A.I.R. 1989 S.C. 903.

inated.1987 S.C. 494; Atam859; Fazal Ghafoor v.

v. J & K; A.I.R. 1989


criterion has been inconsistent and the result is that politicalpower as well as its concomitant benefits have been allowed tobe channelised through traditional groups. The compensatory dis-crimination experience teaches us, as W. H. Morris Joneshas pointed out, 95 that "neither the political life nor the con-stitution can be understood without the other".

Compensatory Discrimination in America

It has been said'96 that "the tensions of affirmative actioncollide, finally, in the Fourteenth Amendment". The AmericanSupreme Court in Slaughter-House Cases, observed : 97 "(0)nepervading purpose of the amendment, is the freedom of theslave race, the security and firm establishment of that freedom,and the protection of the newly-made freeman and citizen fromthe oppressions of those who had formerly exercised unlimiteddominion over him". The Fourteenth Amendment guarantees toevery person "equal protection of the laws". It has no provisionsimilar to Article 15 or 16 of Indian Constitution. The nationalpolitical process was also under no constitutional compulsion tohelp the weak and the downtrodden. Wielding no substantialpolitical power, they were left to the mercy of the majority.As a result, every effort to achieve racial equality between theblacks and whites has been by the court, acting either on itsown initiative, or by policing the government efforts. Such apower being enormous the court had committed the understand-able though regrettable paradox of denying equality to theblacks by invoking the equality clause itself in cases like DredScott v. Sanford98 and Plessy v. Ferquson. 99 The Court's re-trieval from that phase — as part of a longer societal retrieval— has been by building a "two-tiered equal protection clause"

See W. H. Morris Jones, "The Politics of the Indian Constitu-tion" in Vernon Bogdanor (Ed.). Constitution in Democratic Poli-tics (1988), p. 147.See J. Harvie Wilkinson III From Brown to Bakke (1979). p. 294(hereinafter cited as Wilkinson).16 Wall. 36, 87 (1873).19 How. 393 (1857).163 U.S. 537 (1896) (Harlan, J. dissenting).


(that is, rationality and strict scrutiny) through which 'invi-dious classifications' — such as racial discrimination --, and`classifications affecting access to fundamental rights' — suchas one relating to adult suffrage — have to be admitted, to beconstitutionally valid. A crucial point to be noted is that con-stitutional litigation in issues such as these was being conduct-ed by groups, seeking to win by Constitution, 10° reforms thatthey could not win in the political arena.' 01 It is against thisbackground that the judicial behaviour in affirmative actionissues has to be looked at.

J. F. Kennedy was the first President to call for "affirma-tive action" 102 on the part of government agencies and con-tractors. This was because, firstly the Civil Rights movement ofthe 1960's had its profound impact and secondly, despite theepochal ruling in Brown v. Board of Education, 103 outlawingsegregated schools, and despite federal legislations which out-lawed private discrimination, 104 real equality of opportunity re-mained as a myth for blacks. The Carnegie Commiss ion onHigher Education concluded that "(t)he greatest single handicapthe minorities face is their under representation in the professionsof the nation". This was equally true with respect to businessenterprises as well. Though occupational proportionality as astate goal has been decried,' °3 it can not be denied that the

The view that "the Constitution might help those who could nothelp themselves", is celebrated in R. Kluger, Simple Justice (1976)and A. Lewis, Gindeon's Trumpet (1964).See Cox, supra n. 14 at 306.See Stanton, supra n. 19 at 3.

347 U.S. 483 (1954). The Court unanimously rejected the 'sepa-rate but equal' doctrine articulated in Plessy.Title VI and VII of the U.S. Civil Rights Act of 1964 reads: "Noperson in the U.S. shall, on the ground of race, color or nationalorigin, be excluded from participation in. be denied the benefits of,or be subjected to discrimination under any program or activityreceiving Federal financial assistance".See Prof. Cohen and Prof. Posner's comments in Wilkinson, supran. 96 at 268. But see Wilkinson, id. for a view that 'proportionatesociety' is unworkable because of inherent differences among ethnic

(f. n. contd.)

56 Cochin University Law Review 19911

goal is 'democratic' in so far as it allocates power and resourcesaccording to the size of the groups. So, heeding President Ken-nedy's call, thousands of affirmative action programs were moot-ed in education and employment spheres. But, as in India, itis in the sphere of education, that the battlelines were drawn.

It is in DeFunis v. Odegaard 106 that the Court had thefirst look at the affirmative action issues. In the case, DeFunisapplied to the University of Washington College of Law twiceand was rejected both times whereas minority applicants whohad scored less marks than him were admitted. DeFunis broughtsuit in state court where he won. On appeal the WashingtonSupreme court reversed and upheld the law school's affirma-tive action plan. The Supreme Court then granted certioraribut by the time it came to hear his case, DeFunis had alreadyregistered for his last term in law school by virtue of an earlierstay of the Washington Court's order granted by Douglas, J.Because it was conceded, he would graduate regardless of theoutcome, a Supreme Court majority declared the question be-fore it moot. Four justices dissented, pointing out that the casehad been fully argued. Brennan, J. said that the issues shouldnot have been avoided. Douglas J. alone reached the merits andconcluded that any racial preference was unconstitutional. Thecourt's action of ducking the issues was generally criticized.But it shows that the court felt uncomfortable in dealing withan issue which was so emotive and political. It is noteworthythat the 'liberal' judges were the dissenters and except Douglas,J., the rest were he dissenters in Bakke 107 case also. It pro-bably shows an eagerness to legitimise affirmative action pro-grammes by clothing it in constitutional garbs, since in Bakke,the dissenters did precisely that.

groups in work habits, culture, etc., See N. Glazer, AffirmativeDiscrimination (1975). Another defender of disproportion is Prof.Thomas Sowell, "A Black Conservative Dissents", New York TimesMagazine, Aug. 8, 1976 p. 43.416 U.S. 312, 317 (1974). (Brennan, Douglas, White and MarshallJJ. dissenting).Regents of the University of California v. Alan Bakke, 438 U.S.265 (1978).


1. The Bakke Case

Beneath the great debate in Bakke lay a less publicized con-sensus 1 °8 — a consensus that minority status has to be bet-tered. The disagreement about affirmative action was one ofmeans. The medical school of the University of California atDavis employed two admissions programmes. Sixteen out ofhundred seats were reserved for members of minority groups.The 'remaining seats were filled by applicants in the general pool.Alan Bakke applied for admission in the general pool twiceand was turned down twice. In both years minority studentswith considerably lower test scores than Bakke were admittedin the reserved quota. Bakke sued for injunctive and declara-tory relief to compel his admission to Davis, alleging that thespecial admission programme excluded him on the basis of hisrace in violation of the fourteenth amendment, a provision ofthe California Constitution and Section 601 of title VI of theCivil Rights Act of 1964. The Supreme Court of Californiaordered the University to admit Bakke on the ground that hisexclusion under the race-conscious minority admissions programmeviolated the fourteenth amendment. The Supreme Court grant-ed certiorari in February 1977. The case gave rise to six opin-ions. Justice John Paul Stevens, joined by Chief Justice Burgerand Justice Stewart and Rehnquist held that the plain meaningof the words of Title VI of the Civil Rights Act of 1964 for-bids making race "the basis for excluding anyone from parti-cipation in a federally funded program". These four, did notdiscuss the constitutional aspects. Five Judges concluded thatTitle VI merely applies the equal protection standard. Four ofthese five, Justices Brennan, Marshall, White and Blackmunvoted to uphold the School's programme, because "in order to getbeyond racism we must take account of race. . . . And in orderto treat some people equally, we must first treat them differ-ently". 109 All four clearly accepted the quota system. Thissplit left Justice Powell to cast the deciding vote. He held thatthe California programme violated both the fourteenth amendment

See Wilkinson, supra n. 96 at 263.See supra n. 107 at 407.

58 Cochin University Law Review 0991 j

and Title VI because it set aside a quota. He held that in acountry of groups such as America there is no basis for deter-mining which groups deserve special treatment. He also declar-ed that the rights created by the fourteenth amendment areguaranteed to the individual and not groups. 1 io But he allow-ed race to be taken as a factor in judging the qualifications ofindividuals. To all this he added a rider, that proof of pastdiscrimination against minorities — in the form of Judi-cial, legislative or administrative findings" — might justify re-medial quotas. This, as will be seen, has been used subsequentlyto uphold other quotas. Since he cast the deciding vote, PowellJ's opinion prevailed as the court's opinion. Thus, his was aclassic compromise between individual rights and a felt needfor increasing minority representation as part of a move towardsa true limited democracy, somewhat resembling the compromisestruck in Balaji case by our Supreme Court. Thus quota systemwas out, but the Constitution had been rendered more demo-cratic by making it more acceptable, and by diluting the ma io-ritarian interpretations previously put upon equality clauses.

2. Bakke's Aftermath

As controversy over affirmative action in admission tohigher education quieted, controversy over affirmative action inemployment intensified and spread. II Powell J's rider thatquotas can be justified if past discrimination is proved becamemore and more relevant. In Fullilove v. Klutznick," 2 the courtupheld an affirmative action programme whereby the congress hadset aside 10% of its State and local public works grants forcontracts with minority business enterprises. A majority of thecourt did not apply the strict scrutiny standard to the issuebefore them but instead concentrated on whether the govern-mental objectives were valid. This is important as it shows thatthe court not only understood the re-distributive, democratisingeffects of compensatory discrimination but also rendered JusticePowell's rider in Bakke, redundant. But in Firefighters local

Id. at 289, citing Shelley v. Kraeiner, 334 U.S. 1 at 22 (1948).See Cox, supra n. 14 at 282.448 U.S. 448 (1980) (by 6-3).

C.U.L.R. B. ,Rajagopal 59

Union No. 1784 v. Stotts, 113 an affirmative action plan wasstruck down. In United Steelworkers v. Weber 114 a controversywas touched off, when the court upheld an affirmative action`agreement' between United Steelworkers and Kaiser, under whichit had been agreed that Kaiser should increase the proportionof blacks among its employees by prefering blacks with lessseniority than whites. Weber had challenged the agreement onthe ground that it ran counter to title VII of the 1964 CivilRights Act. Two lower courts had upheld his claim. But theSupreme Court reversed, five to two, (the two abstained) andBrennan, J., held that "all voluntary, private race-consciousefforts to abolish traditional patterns of racial segregation andhierarchy" were allowed under the statute. The decision how-ever dealt only with statutory violations and as the subsequentdecisions reveal, can not be considered as contrary to Bakke.

The issues however, were drawn to a head in a series ofcases in 1986. One case was Wygant v. Jackson Board of Edu-cation. 115 In this case the Jackson Teachers Association and theBoard of Education had agreed that layoffs of teachers shouldbe made in customary reverse order of seniority, except that thepercentage of minority teachers would never be reduced. Non-minority teachers commenced a suit complaining that the con-tract and the Board's compliance violated the equal protectionclause and also the Civil Rights Act. The lower courts did notheed and the Supreme Court, five to four, held the plan un-constitutional. Justices Marshall, Brennan and Blackmun upheldthe plan. Justice Stevens also upheld it, noting interestingly, thatan integrated faculty serves a representative purpose in a demo-cratic society. Of the majority, Justices Powell, Rehnquist andBurger, C.J., followed the Bakke reasoning. Justice O'Connorheld that the plan is bad because the Board's lawyers had notadvanced any 'integrated faculty' justification in the lower courtsand so they were barred from doing so. Had they done so, sheindicated, the result might have been different. This special

113.467 U.S. 561 (1984) (by 6-3).114.443 U.S. 193 (1979).115. 106 S.Ct. 1842 (1986).


ground relied upon by her, as well as Justice Stevens', it hasbeen said, renders the future of other plans suspect.116

Further in Local 28, Sheet Metal Workers Int'l Ass'n v.Equal Opportunity Commission' 17 and in Local No. 93, Iraq

Ass'n of Firefighters v. City of Cleveland," 8 the Court upheldtwo plans of affirmative action. In the former, there had been"pervasive and egregious discrimination" by the union and sothis is in line with Powell J's reasoning in Bakke. In the lattercase, only violation of title VII was involved and moreover sinceit was an intervenor application objecting a consent decree, itis difficult to say whether it was by applying Bakke that theplan was upheld. In City of Richmond v. J. A. Croson Co., 119

the court ruled that public policies that favour minorities aresubject to the same strict constitutional scrutiny as policies thatfavour whites. It ruled six to three that a municipal public worksprogramme that set aside 30% of the funds for minority contrac-tors violated the white contractor's constitutional right to equalprotection. It is truly surprising that the court adopted thisapproach because not only was there an earlier authority inFullilove which had upheld a similar plan but the court alsofailed to see that its true function lay in protecting politicallyweak 'insular and disparate minorities' and one way of doingit is by letting the governments do it, not by preventing it. Thecourt failed to strike a balance — a just balance betweenequality as egalitarianism and equality as a constitutional doc-trine.

The most recent and in reality the heaviest blow to Bakkecame in Metro Broadcasting v. F.C.C., 120 decided on the finalday of the Supreme Court's term. Two affirmative action pro-grammes which aimed at increasing minority ownership ofbroadcast licenses, were adopted by the Federal CommunicationCommission in 1978 and they resulted in a modest increase in

See for a detailed discussion, Cox, supra n. 14 at 282-287.106 S.Ct. 3019, 3031 (1986).106 S.Ct. 3063, 3072 (1986).488 U.S. 469 (1989).(No. 89-453), The New York Times, June 28, 1990 Al: 1.


the number of radio and television stations owned by minoritymembers. The programmes gave minority ownership special weightin competitions for new licences, and gave minority ownersspecial opportunities to buy stations in danger of losing theirlicences. Both the programs were challenged as violative of theequal protection clause. The court decided by five to four, thatthey were not so violative and in arriving at that conclusionshrugged off the Bakke constraints. Justice Brennan wrote themajority opinion with Justice Stevens concurring with him.Justices White, Marshall and Blackmun also joined them. It isimportant to note that Justices White and Stevens who were inthe Crown majority now joined Brennan, J. Brennan, J. reliedon Fullilove and adopted its reasoning. He said, "A majorityof the court in Fullilove did not apply strict scrutiny to therace-based classification at issue. . . . Three other members wouldhave upheld benign racial classifications that serve importantgovernmental objectives and are substantially related to achieve-ment of those objectives. We apply that standard today". 121

He declared that under the Constitution the Federal governmenthas more leeways than state and local governments, to devise"benign race-conscious measures" for dispensing governmentlargesse. This is the first time an affirmative action plan has beenupheld to promote a policy for the future and not merely toremedy or rectify past or present discrimination. Stevens J.,concurring, said: "Today the court squarely rejects the proposi-tion that a governmental decision that rests on a racial classifi-cation is never permissible except as a remedy for a past wrong.I endorse this focus on the future benefit, rather than the re-medial justification of such decisions". 122 One can see here,Justice Powell's insistence in Bakke, on past judicial or admin-istrative findings as a pre-requisite for affirmative action, beinggiven a decent burial. Justices O'Connor, Kennedy, Scalia and

Id. at B 8:1. He distinguished Croson, stating that (1) the questionof congressional action was not before the court and (2) in fact,Croson affirmed Fullilove reasoning that race conscious classifica-tions adopted by Congress are subject to a different standard ofscrutiny than other lower governmental actions.Ibid.


Chief Justice Rehnquist dissented. Justice O'Connor drew aparallel between Plessy and the majority opinion and also saidthat the court abandoned the strict scrutiny standard for a"lower standard of review and in practice applies a standardlike that applicable to routine legislation". 123 For Justice Bren-man it was a triumph before his departure from the court. Un-doubtedly the decision has made the future of affirmative actionbright in America. Importantly it is a blow to the majoritywhite population and by its conduct the court has truly vindi-cated its existence.

Thus, it will be seen that the American experience hasbeen one of enormous moral import. The court has had a majorrole in fashioning a true democracy shorn of all its majoritarianstigma.

Compensatory Discrimination and Democracy

"Constitutional law appropriately exists for those situationswhere representative government cannot be trusted, not thosewhere we know it can", John Hart Ely has said.' 24 One sucharea is the realm of private individual rights. The entire spiritof a written Constitution is to be found in a Charter of Rights,not because they embody fundamental principles but becausethey constitute the only effective control of representative govern-ments. John Agresto has observed thus; "Democracy, not con-stitutionalism, is the best means of effectively keeping execu-tives, legislators, and legislative acts in accord with the will ofthe people. The full meaning of constitutionalism on the otherhand, carries with it, not only the idea of restraints on govern-mental action, it surely carries with it also the idea of restraintson the democratic will itself".' 25 Thus the very purpose ofwritten Constitutions containing Bills of Rights and guaranteeingjudicial independence was to put some rights beyond the reach

Ibid. She criticised the movement from 'Separate but e qual' to 'un-equal but benign'.See Ely, supra n. 47 at 183.See John Agresto, The Supreme Court and Constitutional Demo-cracy (1986) at 53. (hereinafter cited as Agresto).

C.U.L .R. B. Rajagopal 63

of law making majorities so that the persons whose interestsare inadequately represented in the political process can be saved.And the branch which can do that is the court. Thus, the argu-ment about compensatory discrimination is one of judicial re-view of popular will. But "Judicial review in its conventionalguise, doesnot entail a direct conflict between the judiciary andthe people. It is instead the will of a legislature that is beingthwarted in the name of the Constitution. In fact this very lackof identity between the people and their representatives formsthe foundation for Alexander Hamilton's defence of judicial re-view in The Federalist 'No. 78: "(W)here the will of the legis-latures declared in its statutes stands in opposition to that ofthe people declared in the Constitution, the judges ought to begoverned by the latter rather than the former". 126 Thus thefunction of judiciary is to uphold the integrity of the Consti-tution against political process. But this theory is more appro-priate in a country such as America where the political pro-cesses are kept under check by the oourt in the name of theBill of Rights. The trouble arises when the Constitution itselfspecifies that the rights can be curtailed, as in Articles 15 (4)and 16 (4) of Indian Constitution. Then, integrity of the Consti-tution itself warrants that the judiciary respect the limitationsto rights. But this problem would have been academic but forthe blatant mis-use of these exceptions by the majority of thepopulation to further their interests. If the exceptions had beenused only in favour of the SC's & ST's and others who are com-parable — as the court said in Balaji — to them in backward-ness, there would be no need to be apprehensive. But what hashappened is a wholesale attenuation of individual rights — asin Balaji — by the majority, not because they are backwardbut because they wield the political power to declare themselvesas such. James Madison's remarks are axiomatic: "The invasionof private rights is chiefly to be apprehended, not from acts ofgovernment contrary to the sense of its constituents,but from acts in which, the government is the mere instrument

126. See Julian N. Eule, "Judicial Review of Direct Democracy", 99Yale L.J. (May 1990) at 1504. (hereinafter cited as Eule).

64 Cochin University Law Review 119911

of the major number of the constituents". 127 Madison directedhis venom at 'majority factions' who, he feared, would be willingto sacrifice "the public good and the rights of other citizens"to their "ruling passion or interest". 128 There must be "safe-guards against the tyranny of (such) passions". 129 The primarysafeguard is the court. This view of the justification for judicialreview was not unknown to our founding fathers.' 30 And theapparent conflict between individual rights and the exceptionswas also noted by K. Santhanam. 131 B. N. Rau explained' 132why restrictions upon rights were placed in the Constitutionitself, instead of leaving it to the courts as in America. Hesaid, it was because, unlike the American Constitution, our Con-stitution itself declares that any provision inconsistent with therights shall be void under Article 13. So, "unless the Constitutionitself lays down precisely the qualifications subject to which therights are conferred, the courts may be powerless in the mat-ter.- 133 Thus the founding fathers clearly intended the excep-tions to be read as exceptions, — to be read down, — so thatthe courts can freely perform their hallowed function, of pro-tecting individual and minority rights. But what is happeningis that the exceptions have ballooned erasing the rights in theprocess and the politically insular minorities have been leftwith no other option but to approach the court. The court, ashas already been pointed out, has varied in its responses, buton the whole, has been slow in allowing law making majorities

Id. at 1530.The Federalist, No. 10 at 60-61.Id. No. 63 at 425.

Both K. M. Munshi and A. K. Ayyar tied the review power withfundamental rights. Both argued for a more explicit basis for itthan that exists for it in America. The result is, that Article 13declares every law which violates fundamental rights protanto void.See Austin. supra n. 6 at 171.

He remarked wryly that, the courts would have to restrict thescope of limitations upon rights, unlike in America, where thecourts were to restrict the misuse of liberty. (id. at 172).Id. at 174.Ibid.


to obliterate individual and minority rights. In America on theother hand the court has started helping the minorities by easingits hold on governmental actions, that favour minorities. Demo-cracy is being so checked by constitutionalism through judicialreview.

Conclusion

In fact the aim of Indian judiciary seems to be to keep demo-crary, constitutionalism and judicial review in a supportive andcomplementary relationship to one another; that is to keep the ten-sion in balance, not to resolve it) 34 Thus, if the egalitarian idealsproclaimed in the Constitution be converted into a body ofself-serving tools by compensatory discrimination techniques bythe sheer power possessed by the beneficiary groups due to theirnumbers, the role of the court is delicate but clear: to strikea balance, between constitutionalism and democracy. Such abalance will only keep the tension between democracy, consti-tutionalism and judicial review. In India, compensatory discri-mination has been used as a tool for 'democratising' the societyby increasing the majority participation in governance, while inAmerica, it has been used to change the contours of Americandemocracy from that of pure majoritarianism to a 'true' limiteddemocracy. And the courts have been sensitive to such deve-lopments. But what the implementation of the Mandal Com-mission Report has done is to guarantee access to limited re-sources and power to the majority of the population as an insti-tutionalized permanence)" The Supreme Court, as a result

See Agresto, supra n. 125 at 85.This aspect of `permanence' of reservations is pointed out by AndraBeteille, "Caste and Reservations — Lessons of South Indian Ex-perience" in The Hindu dated 20-10-1990). He says: "To me themost important lesson of the south Indian experience relates notto the workability of caste quotas but to their irremovability". Seealso Vol. IV, the Mandal Report, supra n. 1 at 279-282; P. & T.S.C. & S.T. Employees Welfare Association v. Union, A.I.R. 1989S.C. 139, where the court held that " reservation" is violative ofequality clauses. This decision clearly confirms Beteille's view onirremovability of Caste quotas. The decision is also legally suspect

(f. n. wind.)


is on a threshold of change; from a passive regulator to an activeprotector of rights which it has been commanded to protectunder the Constitution. An opportunity exists for it to vindicateits existence. But more importantly, on its conduct, will dependthe answer to the question: What kind of people are we tobe?

since, it amounts to making 'reservations' a vested right when thecourt had always held to the contrary, that the power under Articles15 (4) and 16 (4) was "only discretionary".

Documents

Compensatory Discrimination: Judicial Response in India