In spite of several conceptual and methodological differences, the Affirmative Action in U.S. and the Reservation policy in India ought to be viewed in the perspective of the same framework because both are attempts to address basically the same problem that sooner or later crops up in every democracy. The rights and the representation of the deprived sections of the society – problems that no democracy has been able to solve with complete satisfaction to all groups concerned.

No society is entirely homogenous and totally egalitarian and the dominant group or groups strive to capture and retain political power and economic authority by various devices that are a denial of social, political and even legal justice. The U.S. is in a more fortunate position as it could delay dealing with the problems of the deprived and the disgruntled sections of society till it could attain economic, political and social maturity. The African-American, even after their emancipation from slavery were denied a due share in the political, educational and economic arena for a century on the ground of their disabilities.

When the process of empowering them started, American democracy could build such empowerment on the basis of equality and careers were opened to all talents, irrespective of colour, sex and the country of origin. The U.S. still does not provide political representation to such sections and their voice as a group is still not heard in the corridors of power. We in India could not wait or deliberately chose not to wait. Even before we had enough, we wanted to share whatever little we had with the depressed sections of our society. Therefore, our reservation policy is a far more complex phenomenon than the Affirmative Action in the U.S.

Like many of our democratic institutions, reservations also predate our independence. Though the objective was different, reservations during the British regime are similar to those that exist now, with a difference that they were provided not to the deprived sections but to the religious communities. Reservations in government jobs was a logical extension of the communal electorate introduced by the British regime in their efforts to seek a solution to the problems of minority representation when a homeopathic dose of democracy was introduced in 1908. There were fixed quotas of jobs for the Muslims, Christians and Sikhs. This political device of communal electorates together with the reservations of job fostered and intensified the already existing fissures in the body politic. Indian leaders sought to replace communal electorates by providing reserved seats for the minorities in the Assemblies. Two such attempts (1917 and 1928) failed. But when British Prime Minister Ramsay Macdonald accepted the demand made by the Scheduled castes for a separate communal electorate for themselves, Mahatma Gandhi staked his life against it and the Poona Pact provided reserved seats for them in the elected bodies.

A relic of this now distant past has survived in our Constitution. It is hardly ever noticed that the Constitution (Art.336) had provided reservation of government jobs and services for the most highly educated and prosperous community of Anglo Indians for ten years. This tiny and rapidly disappearing community still enjoys the right of representation in the federal as well as in the State assemblies. Since it cannot get elected, our elected houses are vitiated by the presence of the nominated members to represent that community in the Lok Sabha as also in the Vidhan Sabhas of the States concerned.

Affirmative Action is a single target policy of preventing discrimination against certain groups of citizens. The end purpose of the Reservation policy is in a way exactly opposite to that purpose and is a denial of the equal opportunity principle. We have sought to provide opportunities to those who, for no fault of theirs, were not in a position to compete on the basis of equality. Our Reservation policy is an antidote to an exploitative and unjust social structure known as the caste system.

The Reservation policy is often described as protective discrimination. The purpose is not to end the discrimination but to foster discrimination in order to protect and empower the deprived sections of our society. However noble the purpose may be, such discrimination is anti-democratic because it violates the noti; pr; pron of equality that is one of the cardinal principles of democracy. But it should have been noticed that we have made a special addition to the definition of democracy in the Preamble to our Constitution. To the 19th century concepts of liberty and equality, we have added the 20th century concept of social justice and given it first place in preference to both equality and liberty. For us in India, social justice takes precedence over both equality and liberty, because of the unjust social structure we have inherited from our past and which all our reformers from the days of Dayanand Saraswati have been trying to eradicate. Such discrimination, however protective it may be, proves in the long run poisonous for the body politic and the Constitution fathers were aware of this danger and were quite uneasy about it. But poison sometimes has to be used as a life saving drug. The reservation of seats in the elective bodies was a temporary aberration and was to be discontinued after ten years.

Reservation is not an atonement of our past sins and should not be considered a compensation for the damage inflicted in the past. The exploitation and the deprivation of the Dalits is still very much a horrifying reality at the ground level actualities in the social scenario of modern India. Whatever the Constitution and the laws might be saying, there is no denial that we have as yet not reached our goal of an egalitarian society. Therefore the terminating date has to be periodically extended and now there is no sign and no hope of such reservation ever ending. There is also a totally different category of reservations that are not rooted either in logic or in expediency. They are the products of unjustified sentimentalism. Some portions of government jobs and patronage is reserved for the freedom fighters, for war widows, the handicapped or those affected by natural calamities.

The Reservation policy is rooted in the same belief that underlay the communal electorate that the interests and the aspirations of a group can be presented and protected only by persons belonging to that group. Only a scheduled caste leader, only a tribal, only a woman can represent the group concerned. We are still not able to conceive of a Lincoln or a Gandhi, or a Karve as better spokespersons for the blacks or the dalits or women. There exists an all-pervading distrust of ‘outsiders’, a symptom of the disharmony prevailing in our society. That is the reason why more and more groups and communities are demanding reserved seats and quota of jobs for their own groups and communities commensurate with their numerical strength in society. There are vociferous complaints that there are not enough Muslims in the police force or enough Dalits in the judiciary and therefore they are discriminated against in the administrative and judicial decision making processes. The complaints are not entirely unjustified because all sections of Indian society are still affected by communal and caste considerations. But all such demands, are strictly speaking, a denial of democracy and a rejection of an integrated nation. The more such demands are complied with, the longer will segregation persist.

Political reservations create an anomaly. It is physically impossible to elect representatives who entirely and exclusively represent the groups concerned. The constituencies reserved for the scheduled castes and scheduled tribes contain a fairly large number of savarnas and non-tribals who are permanently excluded from the parliamentary arena and are thus deprived of their political rights.

Sociologically speaking, the term scheduled caste or tribe is a legal myth. There is no such caste and no such tribe. There are a large number of castes and tribes that are listed in the government schedules and the lists keep on lengthening. There is neither homogeneity nor unity among these groups, except that nearly all of them have suffered at the hands of the upper castes. These castes and tribes are at various levels of educational or economic development and often intensely hostile to one another. The legislative seats reserved for all these castes have been monopolized by a few groups among them and has hardly contributed to the empowerment of all the socially oppressed castes among them. In fact, the higher castes among them have joined the savarnas in exploiting the underdogs.

But there is another and more important field of reservations that proved very effective in the empowerment of almost all sections of the Dalits and the Adivasis. While political reservations have benefited a few, the reserved quotas of jobs in government and semi-government corporations and institutions have helped a large number of them in securing employment as well as in improving their social status.

The reservation system works differently in India from the equal opportunity system in the U.S. It is not a question of equal opportunity. The scheduled castes or tribe candidate has the exclusive right to that job and has to compete only with other scheduled caste or tribe candidates. Similar reserved quotas are provided in the institutes of higher learning. Since there is a paucity of educational facilities, especially for medical and engineering professions, such a privilege becomes a decisive turning point in the careers of several young and brilliant students and their families. Such reservations have produced a new class of mandarins and a privileged group of citizens because careers are open not to the talented but to accidental birth into certain castes and tribes. This has also intensified caste prejudices that cut both ways. Those who benefit would intense caste consciousness and caste loyalties and are acutely aware of their caste identity. Those who lose the opportunity in spite of merit would hate them and would become painfully conscious of belonging to the new cluster of deprived caste groups. Political representation, coupled with an easier and an assured access to highly restricted educational facilities and a fixed quota of jobs are not the only privileges available to those who fall within the reservation categories. They are also entitled to a percentage of public housing allotments and are provided with softer loans by the banks and other financial institutions.

These are some of the most important factors in making reservations a volatile issue in political debates in India in two diametrically opposite directions. The benefits are so many and so palpable that the reservation policy has created a vested interest in backwardness. Several castes and their leaders constantly strive to prove their backwardness in order to sneak into one or the other reserved categories and intensely resent their exclusion. The upper sections of Indian society who up to now enjoyed a near monopoly of the cake resent these newcomers armed with reservation facilities. What the communal electorate did in the field of political unity is being repeated in the social field by the reservation policy and the results might be as dangerous as was witnessed in the ‘thirties and the ‘forties of twentieth century India. The strain has already started showing. The venomous debate and the furious riots between the castes echo the happenings during the pre-independence years because there is hardly any demarcating line between the communal and caste virus.

The debate becomes all the more irascible because the area of reservation has been steadily expanding and newer groups and sections of Indian society are being recruited by political parties seeking more and support of the masses. In fact there are several political parties which claim to exclusively represent the various castes and caste groups of Indian society. Political reservations as also special quotas of jobs and educational facilities are prescribed only for the scheduled castes and tribes in relevant articles of the Constitution. But there are also blanket provisions in Art.15(4) and 16(4) which have enabled the government “to make special provisions for the advancement of the socially and educationally backward sections of citizens”. A number of Backward Classes Commissions appointed by the governments of various States as also by the federal government have been responsible for providing reservations for the backward groups and the percentage of such reservations have already attained a level of absurdity. When the reservation quota for the ‘Other Backward Classes’ was steeply jacked up from 10% to 27% bringing the total of reservations to 49% (1988), there were furious riots against the government’s move. The Supreme Court of India has tried to soften the blow. It ruled in several cases that since reservation is for the minorities, the percentage ought to remain less than fifty. Secondly, reservations are meant for the deprived and hence ‘the creamy layers’ among the scheduled castes and tribes must not be given the benefits of reservations. Thirdly, the benefits of reservation must be available only once and there should not be any reservations for promotions in the services and for entering higher classes in educational institutions. But the attitude of the Court was attributed to the absence of any scheduled caste or tribe representative on the Bench and the Constitution has been amended twice (Amendments 77 and 78 in 1994 and 1995) to overrule these verdicts.

It must be emphasized even at the cost of repetition, that the reservation benefits are not for all the deprived and depressed sections of the Indians: they are strictly reserved for the Hindus, the operative word being ‘socially backward’. All other religions which loudly proclaim about social equality amongst their adherents and have emphatically rejected the caste system. This is a myth. The reality is that no religious community in India – neither Muslim, nor Christian, nor Sikh, nor Buddhist – has succeeded in freeing itself from the rigid grip of the caste system and the caste distinctions variously named exist in every one of them. In theory, these communities are homogenous; in reality, they are not. But in theory, the converts to these religions are not ‘socially backward’ and hence immediately lose all the benefits of reservations. The converts often do keep their conversions under wraps in order to get the best of both worlds. Christian leaders have time and again stressed that many converts to Christianity are as deprived as their Hindu brothers and ought to get the benefits of the reservation policy. They have not succeeded so far. When Dr. Ambedkar and thousands of his followers rejected the caste system and got converted to Buddhism, they too should have lost such benefits. This did not happen because soon thereafter the then Chief Minister of Maharashtra interceded on their behalf and notified that they were still entitled to all the benefits of reservations.

There is one more complication that must be added here. In certain parts of India, mostly in South India, the reservation policy has become an instrument to give vent to intense anti-Brahminism that becomes more and more intense as one travels south in India.

The negativism involved in the reservation policy and the frustrated venom of the once-privileged castes fighting a losing battle has created several obstacles and aberrations in the smooth implementation of the reservation policy. The letter is observed but the spirit is violated. There is widespread allegation, often based on actual experiences that upper caste officers and academicians entrenched in the higher echelons use every excuse and device to block the further progress of those who have entered through the portals of the reservation system. They often sully the records about the administrative efficiency and the moral standards of such entrants and subject them to far more severe tests. In order to counter such tactics, a roster system has been introduced and the backlog has to be filled up on a priority basis in subsequent years. A silent but intense tug of war is continuously being fought out and vitiates the atmosphere in government offices and academic institutions affecting performance everywhere.

But all such reservation controversies have been recently dwarfed by the furious debate about the 33% reserved seats for women in all the elected assemblies of India. So far there is no demand for reservation of jobs and educational seats for women. Since women do not form a caste and are neither socially or economically backward as a class, the demand for reservation cannot be considered till the Constitution is suitably amended. The bill for the purpose has been introduced regularly in the Lok Sabha but every time it has met with stubborn opposition on a number of grounds. There is no question of gender justice involved here. There is no denial that women are the worst sufferers in every respect and are the most deprived section of Indian society. But they form no social group and by no stretch of imagination can be described as a separate and distinct minority.

The greatest hurdle in granting reserved seats to women would be of an administrative nature. It is about the constituencies that will have to be demarcated for them since they are inseparable from their male counterparts. If certain constituencies are fixed for them, the males in those areas will be driven out of the political arena on a