Comment: Reverse discrimination. (1994, 20 Marks)
Reverse discrimination is the charge that measures meant to undo historical disadvantage themselves discriminate, burdening individuals on a ground such as race or caste that equality forbids. The label is a critic’s word from American litigation of the 1970s; in India the same measures sit inside Part III, so the debate is really over what equality means.
Origin: The American Framing
- In Regents of the University of California v. Bakke (1978) a white applicant challenged a medical school’s set-aside of 16 of 100 seats. Lewis F. Powell Jr.‘s controlling opinion struck down the fixed quota but allowed race as one “plus” factor, justified by diversity. Harry Blackmun replied that in order to get beyond racism, we must first take account of race.
- Ronald Dworkin (Taking Rights Seriously, 1977) defended such programmes: the rejected applicant has a right to treatment as an equal, not to identical treatment.
- Students for Fair Admissions v. Harvard (2023) ended race-conscious admissions. Chief Justice John Roberts held that eliminating racial discrimination means eliminating all of it, the colour-blind view.
The Indian Form
| Provision | Origin and judicial gloss |
|---|---|
| Art. 15(4) | First Amendment (1951), reversing State of Madras v. Champakam Dorairajan (1951) |
| Art. 16(4) | Original text: backward classes inadequately represented in public posts |
| Arts. 16(4A), 16(4B) | 77th (1995) and 81st (2000) Amendments: promotions, carry-forward; upheld in M. Nagaraj (2006) subject to quantifiable data |
| Art. 15(5) | 93rd Amendment (2005): admissions, including private unaided institutions |
| Arts. 15(6), 16(6) | 103rd Amendment (2019): 10% EWS quota; upheld 3:2 in Janhit Abhiyan (2022) |
State of Kerala v. N. M. Thomas (1975) was the turning point: Article 16(4) is a facet of equality under 16(1), not an exception to it. Indra Sawhney (1992) built the frame: 27% OBC quota upheld, creamy layer excluded, a 50% ceiling save in extraordinary cases. State of Punjab v. Davinder Singh (2024) allowed sub-classification of Scheduled Castes.
The Case for “Reverse Discrimination”
- Substantive, not formal, equality: in a society B. R. Ambedkar described as graded inequality, identical treatment ratifies hierarchy.
- Merit is not neutral. John Rawls argued that no one deserves his natural endowments or social starting point; a score records schooling and family capital as much as ability.
- Marc Galanter (Competing Equalities, 1984) preferred the term compensatory discrimination: the scheme remedies caste exclusion that income does not cure.
The Critique
- Individual justice: a candidate bears the cost of wrongs he did not commit.
- Elite capture: benefits cluster in a mobile upper stratum, which the creamy layer and sub-classification only partly correct.
- Perpetuation: caste becomes the currency of state benefit, visible in the Jat, Patidar and Maratha agitations. The ceiling keeps being tested: the Patna High Court struck down Bihar’s increase to 65% in June 2024, and the Supreme Court declined to stay it.
- Drift: the EWS quota moves the rationale from social exclusion to poverty, while excluding poor SC, ST and OBC citizens, the objection of the dissent by U. U. Lalit and S. Ravindra Bhat.
Position
As a verdict on principle the charge is misplaced. Ambedkar himself told the Constituent Assembly that reservation must be confined to a minority of seats, keeping equality of opportunity the rule. Indian law has absorbed the critics’ best points as problems of design, not grounds for abolition; what remains is precise targeting, which the caste enumeration in Census 2027 should inform.
Conclusion
“Reverse discrimination” fits a colour-blind constitution; India chose a caste-conscious one in order to become caste-blind. Preference is legitimate while it tracks real, measured disadvantage and stays temporary in purpose; once it becomes a permanent entitlement or an unmeasured poverty quota, the critics regain their force.