To My Revered Tauji Late Shri Shilendra Mishra Advocate
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Dedicated To My Revered Tauji Late Shri Shilendra Mishra Advocate EMPOWERMENT OF BACKWARD CLASSES THROUGH RESERVATION POLICY WITH REFERENCE TO DR. B.R. AMBEDKAR’S VISION AND CHALLENGES IN CURRENT SOCIO-LEGAL MILIEU THESIS Submitted for the Award of Degree of Doctor of Philosophy IN LAW By ANKIT MISRA Under the Supervision of PROF. (DR.) MOHAMMAD SHABBIR CHAIRMAN DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH-202002 (INDIA) 2012 Certificate This is to certify that Mr. Ankit Misra has completed his Ph.D. thesis captioned: Empowerment of Backward Classes through Reservation policy with Reference to Dr. B.R. Ambedkar’s Vision and Challenges in Current Socio-Legal Milieu for the award of the Degree of Doctor of Philosophy in Law under my supervision. This is original work and meaningful contribution to the existing legal knowledge. This is fit for submission for the award of the Degree of Doctor of Philosophy in Law. (Mohammad Shabbir) ACKNOWLEDGEMENTS It is my pleasant duty to express my sense of gratitude and obligations towards those without whose help and encouragement this work could never have been produced in this form. I express my profound gratitude to my supervisor Professor Mohammad Shabbir, Chairman, Department of Law, Aligarh Muslim University, Aligarh for his expert guidance, valuable suggestions and encouragement to keep my endeavour intact towards the completion of this work. I am equally grateful to Dr. (Mrs.) Khan Noor Ephroz, Principal, Vivekanand Law College, Aligarh for her encouragement, blessings and motherly love. I feel immense pleasure to record my sincere gratitude to my esteemed teachers, Prof. Saleem Akhtar, Dean, Faculty of Law, Prof. Akhlaq Ahmad, Prof. I.A. Khan, Dr. Zubair Khan, Dr. Md. Waseem Ali, Dr. Zafar Iqbal, Dr. Nafees Ahmad, and all other teachers who have cooperated me a lot. I express my deep sense of gratitude to my family specially my father, mother, bhaiyya, bhabhi and nephew Utkarsh. I would like to acknowledge the cooperation and love of my wife Priya for her consistent encouragement to complete my work. I am thankful to all of my friends Mr. Fakharuddin, Dr. Haider Ali, Mr. Ravindra Singh Pundir and his wife Gudiya Bhabhi, Mr. Zubair iv Khan, Mr. Adnan Siddiqui, Mr. Aqeel Ahmad, Mr. Anil Tomar, Mr. Mueen Khan, Mr. Deepak Kumar and my dearest late Manoj Dixit. My sincere thanks to Dr. B.R. Ambedkar Chair of legal studies and research, Department of Law, A.M.U., Aligarh and its staff especially Dr. Zafar Ahmad Khan, Mr. Zaheer and Shakeel for their interest and devotion in process of the completion of the work. I am thankful to Mr. Kafeel Ahmad Khan who really deserves a special thanks for typing this work with ability and sincerity inspite of his very tight and busy schedule. Last but not the least, I am grateful to all those who toiled behind the scene and assisted me in completing this research work. (Ankit Misra) v CONTENTS Page No. Certificate Acknowledgements iv-v List of cases ix-xii List of abbreviations xiii-xiv Introductory Remarks 1-27 PART-I CHAPTER-I Connotational analysis of reservation/protective discrimination/ affirmative action 28-40 CHAPTER-II Evaluation of reservation policy in historical perspective 41-60- PART-II CHAPTER-I Reservation is a world phenomenon as a means for empowering deprived and subjugated segments of society 61-66 CHAPTER-II Survey of reservation policy as operative tool to empower in a few selected developed and developing countries 67-74 PART-III CHAPTER-I Scrutiny of legislative provisions ensuring reservation during British Regime 75-80 CHAPTER-II Impact of freedom movement on reservation policy 81-95 vi PART-IV CHAPTER-I Critical Evaluation of the advocacy of reservation by prominent political leaders/legal luminaries/social reformers 96-113 CHAPTER-II The vision and mission of Dr. B.R. Ambedkar to conceive an egalitarian society through the tool of reservation based on equality, liberty and fraternity 114-127 PART-V CHAPTER-I Constituent Assembly debate on reservation policy 128-135 CHAPTER-II Reservation and Constitution of India 136-141 CHAPTER-III Constitutional Amendment Recognizing/Ensuring Reservation 142-148 PART-VI CHAPTER-I Evaluation of Legislations (Central And State) Ensuring Empowerment Of Subjugated Classes 149-161 CHAPTER-II Evaluation of Recommendations of various Commissions/ Committees/ panels/appointed by Union and State Governments. 162-214 PART-VII CHAPTER-I Evaluation of reservation policy as a means of empowerment to backward classes 215-228 vii CHAPTER-II Appraisal of reservation as a potent tool for empowering the Scheduled Castes and Scheduled Tribes 229-244 PART-VIII CHAPTER-I Essence of politics in Backdrop/background of Reservation 245-288 CHAPTER-II Reflection of discrimination in process of extending reservation to backward classes especially Muslim Backward Classes 289-314 PART-IX CHAPTER-I Reservation and equality of opportunity in educational Institutions, public jobs and legislative houses 315-330 CHAPTER-II Need of Reservation in Private Sector 331-347 PART-X CHAPTER-I Evaluation of Judicial Response through Landmark judgments of Supreme Court and High Courts devoted on Reservation Policy 348-396 Concluding Remarks and Suggestions 397-420 Bibliography 421-433 viii ABSTRACT Statement of Problem The theme of Reservation Policy usually triggers controversies and evokes passionate reactions and debates amongst both adherents and detractors. Irrespective of the context in which it is invoked, the philosophical content of the idea is essentially contestable and complex. The Reservation policy debate is not between persons who are “Pro- equality” and others who are “Anti-equality”. Both the most ardent advocates of Reservation Policy and its most vehement foes loudly proclaim their allegiance to the ideal of equality. The recent country wide debate, discussion and the proceedings in the Parliament, when the Women Reservation Bill was introduced, has once again brought the concept of reservation in Indian politics into limelight. The issue of reservation, however, is not an alien concept to the India Society. In fact, it has been in operation prior to our independence. After so many years of its implementation, the reservation policy has reached a stage where both its supporters and critics are unhappy about it. The former are unhappy because it has not created a noticeable impact on the social and economic conditions of the Scheduled Castes (SCs) and Scheduled Tribes (STs), majority of whom still continue to be socially isolated, illiterate and poor. Its critics complain that in matters of employment, promotions and admissions, reservations have been stretched too far at the cost of merit and equity giving rise to frustration and alienation among the unreserved category. The direct outcome of this policy was supposed to be more 1 equitable distribution of economic resources and a worthwhile sharing of power at different levels in the running of the state affairs. But in reality, what has actually happened is that this policy has been exploited by various pressure groups and vested interests within and outside the beneficiary castes and tribes. Extension of reservations to the Other Backward Classes (OBCs) and demand for reservation for the Dalit Christians, Muslims and women are a few examples of the opening up of the Pandora's Box. The Constitution of India is the whole crux of the problem from which emanates the reservation policies. The Constitution is based on the class philosophy of the bourgeoisie which is not supra historical, eternal and ideal to be accepted by all, and for all the time. The reservation policies became more and more the tools for electoral gain rather than a system for delivering the goods for economic and educational upliftment of the poor. The policies did provide economic and political opportunities for individual mobility. A section of the untouchables and tribes who were at the fringe of the Indian societies moved out of their social position and became part of the privileged class of the system. They were incorporated into the exploitative system. Reservation Policies thus widened the support base of the system and made it more durable. A caste ridden Indian society, which never had the opportunity to be organized on the basis of equity even in the formal sense, needs to be structured in a way leading to the goal of social equality. The caste system is not rooted only in economic inequality; hence a decisive social change towards social equality cannot be left to economic functions alone. Justice demands fair distribution of authority, income and status. Marc Galanter characterizes Indian society as a "compartmental society" within which a vast number of groups maintain distinct and diverse styles 2 of life. The need to integrate the ethnic groups, minorities and other socially and culturally localized groups made the Constitution makers opt for providing Constitutional safeguards to these sections of the society in the form of reservation or protective discrimination. According to Justice K. Subba Rao, in a limited sense, the right to social justice may be defined as the right of the weak, aged, destitute, women and children and other under privileged persons, to be protect by State against the ruthless competition of life. It is a bundle of right: in one sense it is carved but of other's rights and in another sense, it is a preserver of other's rights. Equality before law is the most precious democratic right of an Indian citizen. But by merely ensuring equality of opportunity to all citizens in respect of educational and employment opportunity, we may be ignoring the special problems of some backward sections of our society who have suffered from social, cultural, educational and economic deprivations for hundreds of years. It is a well-known dictum that there is equality only among equals. To equate unequal is to perpetuate inequality.