This book examines the controversial 103rd Constitutional Amendment to the Indian Constitution that introduced an income and asset ownership-based new constitutional standard for determining backwardness marking a significant shift in the government’s social and public policy. It also analyses state level policies towards backwardness recognition of upper-caste dominant groups through case studies of Maharashtra, Haryana, and Gujarat. It provides an analytical and descriptive account of the proliferation of reservation policy in India and critiques these interventions to assess their implication on constitutional jurisprudence. Further, it assesses the theoretical and empirical challenges such developments pose to the principle of substantive equality and scope of affirmative action policies in Indian constitutional law and general discrimination law theory. The monograph shows how opening up of reservations for dominant upper-caste groups and general category will have implications for the constitutional commitment to addressing deeply entrenched marginalisation emanating from the traditional social hierarchy and the understanding of substantive equality in Indian Constitutional law. Further, it highlights key contradictions, incoherence, and internal tension in the design of the reservations for Economically Weaker Sections
Critical, comprehensive, and cogently argued, this book will contribute and shape ongoing constitutional policy and judicial debates. It will be of great interest to scholars and researchers of law, Indian politics, affirmative action, social policy, and public policy.
Author(s): Asang Wankhede
Publisher: Routledge
Year: 2022
Language: English
Pages: 221
City: London
Cover
Half Title
Title Page
Copyright Page
Dedication
Table of Contents
List of figures
List of tables
Acknowledgements
List of abbreviations
List of cases
List of statutes
List of other primary legal sources
Chapter 1 Introduction
1.1 Main argument
1.2 Scope
1.3 Structure of the book and chapter summaries
1.3.1 Part I: Reservations for EWS and upper-castes in India
1.3.2 Part II: the post-2019 regime, state interventions, and discrimination law theory
1.4 Methodology
1.5 Conclusion
Part I Reservations for EWS and upper-castes in India
Chapter 2 The legal history of reservation for SCs/STs and OBCs
2.1 Introduction
2.2 Constitutional provisions for reservations in India
2.3 The post-colonial legal history of reservations in India
2.3.1 Scheduled Castes (SCs) and Scheduled Tribes (STs)
2.3.2 Other Backward Classes
2.3.2.1 Mandal
2.4 Taxonomy of beneficiary classes and concepts in Indian affirmative action debate
2.5 Conclusion
Chapter 3 Reservation for EWS and upper-castes in India: the Legislative and Executive developments
3.1 Economically backward sections among non-beneficiaries of reservations and 103rd Constitutional Amendment 2019
3.2 Sinho Commission Report 2010
3.3 State legislations and executive actions providing reservation for EWS and upper-castes
3.3.1 The Maratha reservation debate in Maharashtra
3.3.2 Reservation for Patidar community in Gujarat
3.3.3 Reservation for Jat community in Haryana
3.4 Jurisprudence of SCI and the HCs on reservations for upper-caste groups and EWS
3.5 Conclusion
Chapter 4 The political context and creamy layer
4.1 Political context of reservations for EWS and upper-castes
4.2 The concept of creamy layer and purely income deprivation-based EWS criteria
4.2.1 Creamy layer: the history and backward classes
4.2.2 Creamy layer and the SCs/STs
4.2.3 Creamy layer and EWS
4.3 Conclusion
Chapter 5 The judicial treatment
5.1 Introduction
5.2 SCI and reservation for Economically Weaker Sections (EWS)
5.3 Judicial treatment of state interventions in reservations for EWS and upper-castes in the states of Maharashtra, Gujarat, and Haryana
5.3.1 Demarcation of beneficiary classes and determination of backwardness
5.3.1.1 Backwardness of Maratha community in Maharashtra
5.3.1.2 Patel-Patidar as ‘Unreserved Economically Weaker Section’ in Gujarat
5.3.1.3 Backwardness determination of Jats in central list of OBCs and Haryana
5.3.2 Extent of quota and extraordinary circumstances
5.3.2.1 Maharashtra
5.3.2.2 Gujarat
5.3.2.3 Haryana
5.3.3 Reasonable classification
5.3.3.1 Marathas, reasonable classification, and SEBC
5.3.3.2 Ten percent quota in Gujarat: reservation or reasonable classification?
5.4 Conclusion
Part II The post-2019 regime, state interventions, and discrimination law theory
Chapter 6 Substantive equality and affirmative action
6.1 Introduction
6.2 Substantive equality doctrine in India
6.3 Substantive Equality in the general theory
6.4 Affirmative action in India and the general theory: definition, scope, and objectives
6.5 Conclusion
Chapter 7 Demarcating protected groups
7.1 Protected grounds and demarcation of beneficiaries
7.2 The extent of quota limit
7.3 Conclusion
Chapter 8 Socio-economic disadvantages in discrimination law
8.1 Treatment of socio-economic/pure-economic disadvantages in discrimination law
8.2 Sociological meaning of class
8.3 Conclusion
Chapter 9 Conclusion
Bibliography
Index
