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Compensatory Discrimination in Light of Theories Of Justice

INTRODUCTION

In a civilized social system, law plays not only the role of guarantor of justice equality and liberty, but also as a tool for attaining the ends of justice. In this respect the modern democratic state has to adopt objective standards to protect the human rights of its citizens. Equality is one among those cardinal human rights by which the State is mandated to treat the equals equally and unequal unequally when it distributes its own benefits to the people.
But who are equals and who are unequal is a thorny issue, for the limited resources are much valuable and required by the various group of people and they have to be distributed justly and fairly. In the Indian constitutional scheme, it had been envisaged by the framers that there should be equality of opportunity is for all citizens in public employments and such equality of opportunity a fundamental right of the citizens’.At the same time, the need for some beneficial treatment to the weaker sections of the society was also enshrined with that right. What is the basis of distribution of societal resources to certain sections? The thrust of this Chapter goes with the following enquiry. Is there any jurisprudential foundation for protective discrimination? If so what is it?
This aspect is assessed from the angle of different theories of justice viz., social justice, distributive justice, equality and equal opportunity and social engineering theory.
The responses of Indian courts in this regard are also examined.

Justice : Meaning and Content

The concept of justice is even older than that of law. The maxim, fiat justicia ruat co'elum,
i.e., let heavens fall, justice has to be done, is the quintessence of all philosophies the human beings have founded. Justice is considered to be the primary goal of welfare State whose very existence, in turn, rests on the parameters of justice. The principle of justice is neither precise nor well-defined. Justice is a word of ambiguous import. As Alfred Denning said:
"All I would suggest is that justice is not something you can see. It is not temporal but eternal. How does man know what is justice? It is not the product of his intellect but of his spirit. The nearest we can get to defining justice is to say that it is what the right-minded members of the community — those who have the right spirit within them — believe to be fair."
The traditional definition of justice is underlined in the maxim, suum cuique tribuere to render to each person his or her due. The origin of the concept of justice dates back to the beginning of the human cultural heritage. It was first viewed as a king of metaphysical and cosmological principle regulating the operation of forces of nature on the elements of universe, securing balance and harmony among all. The notion of justice was explicitly recognized later in the injunction given to judges, as found in ancient Egypt or in Hebrew law, to administer the law impartially, ‘to hear the small as well as the great. However, even the impartial administration of law did not result in complete and real equality. Later, it was recognized that laws which are impartially applied might themselves be unequal. Hence it was felt that differential treatment required justification in terms of relevant differences.
This paved the way for removing arbitrary discrimination such as those based on race, colour religion and sex. Further, the notion of impartiality was extended by applying it to a wider range of rights and duties. Thus, there was a movement from equality in political rights to equality in social and economic rights. Accompanying this transition was a shift of emphasis from ‘commutative justice’ as a sort of equivalent of exchange or balance of claims and counter-claims between individuals, to ‘distributive justice’ as a social responsibility assuring to all at least the minimum condition of physical and mental well-being. This doctrine has, ever since the very earliest times, become the possession of the western philosophical tradition through Plato, Aristotle, Cicero, Ambrose, Augustine and above all through Roman law. This perception contains the distributive element. As Paul Elmore More said, ‘it is the act of right distribution'. According to Kelsen, ‘the longing for justice is man's eternal longing for happiness. It is happiness that man cannot find alone, as an isolated individual, and hence seeks in society. Justice is social order‘. The happiness, as he clarified, is the objective satisfaction of certain needs, recognized by the social authority, the law giver, as needs worthy of being satisfied, such as the need to be fed, clothed, and housed and the like.
The essence of the principle of justice is the ‘recognition of each person as an autonomous moral individual, with claims as a person equal to those of another person, equally free and responsible for his own life, work and affairs’. Del Vecchio succinctly explained the same fundamental principle in the following words
"It demands the equal and perfect recognition, according to pure reason, of the quality of personality in oneself as in all others, for all the possible interactions among several subjects.

The principle of justice has another facet of confronting injustice. As Edmond Cahn said, ‘justice is not a collection of principles on criteria‘, but it is ‘the active process of preventing or repairing injustice? Thus, justice has become the end of government and the end of law.

Justice and Equality
Equality as an aspect of justice, has two phases, viz., equality as a means of doing justice and as an end of justice.“ The concept of equality cannot easily be defined in absolute terms, because, it depends upon factors such as place, persons, time, subject matter etc., in a particular society. It has multidimensional connotations. Justice Mathew aptly said:
"The claim for equality is in fact a protest against unjust, undeserved, and unjustified inequalities. It is a symbol of man's revolt against chance, fortuitous disparity, unjust power and crystallized privileges".
To meet justice, justice should be ensured to all citizens. The canon of equality is always an expectation that justice should be there by treating equals equally. But, when the subjects involved in the treatment to attain equality, the justice principle varies based on the claims of different groups, i.e., equals and unequals. Fairness which is the other side of justice principle, in a relative sense, requires various methods of treatment by the State from one person to another depending upon the social necessities. Hence, to attain the real equality, different kinds of approaches are required.
Julius Stone rightly explained the paradox vested in the insistence of formal equality in the following words:
"The simple and ancient but still important truth is that we cannot insist on equality in all respects, of both treatment in law and positions in fact. For positions in fact, independent of what the law may do, are always unequal. Equal treatment by the law operating on such factual inequalities of powers, talents and personal fortune, would often sanctify or even deepen such factual inequalities". He underscored the significance of unequal treatment in this context: For removing or reducing factual inequalities by the law must itself resort to unequal treatment of the persons concerned. According to him, the choice is not between equal treatment and the making of distinctions, it is between making (or tolerating) distinctions which can be justified, and making (or tolerating) those which cannot be justified.
Justice V.R. Krishna Iyer also expressed the relation between equality and justice in a similar fashion. 23 Regarding the elimination of inequalities, he said
"A community secures justice when its due is meted out so that its cultural life, in esse and in posse, contributed by each of its members, blossoms without the frost-bite or blizzard of governmental or majoritarian inhibitions, prove importantly, if the group, in its collective personality, is weak, suppressed or voiceless, right and justice demand that its desperate inequality be demolished and cultural integrity preserved by affirmative State action, so as to restore, through dynamic measure of equalization, a broad level of actual equality with the general community".

Distributive Justice
The contemporary legal philosophers have classified justice into many categories and distributive justice bloomed from the natural law principles of jurisprudence. The substantial connection of justice and equality can be traced out from the philosophy of distributive justice. This concept aims at ensuring a fair division of social benefits and burdens among the members of a society. In the words of Aristotle, the founder of this concept, distributive justice ‘is expressed in the distribution of (public assets such as) honor, wealth and other divisible assets of the community'. “Aristotle identified justice in this area as some sort of equality among those who have to share the common goods or honors.” According to Nicholas Rescher, distributive justice embraces the whole economic dimension of social justice, i.e., the entire question of the proper distribution of goods and services within the society.
The task of a theory of distributive justice is to provide the machinery in terms of which one can assess the relative merits or demerits of a distribution, the assessment in question being made from the moral or ethical point of view. Its objective is to establish a principle by which the assessment of all alternative possible distribution can be carried out. Rescher further said that the evaluation criterion of an adequate theory of distributive justice must be capable not simply of absolute idealization (i.e., of telling us what the ideal is), but also of relative evaluation (i.e., of telling us which of several possible alternatives is to be regarded as the most satisfactory.) Hence the administrators who distribute the benefits ought to know the feasible alternative best methods. In India the State is the major provider of employment opportunities and the State has to adopt various strategies and evaluate many factors for an effective application of distributing its benefits on the basis of some objective standards such as the merit, desert and need of the person.
The philosophy of distributive justice“ which mandates uneven distribution of benefits among unequals has been transplanted into the Indian Constitution in its Preamble, Fundamental Rights and Directive Principles of State Policy. Articles 38, 39 and 46are guiding stars in this respect, though they do not lay down the principles of eliminating social inequalities and for the distribution of the material resources of the community which would sub serve the common good.
In general, to distribute the benefits or employment, merit is considered as the core element to determine the intelligence or ability of a person. But the environment of a person is the significant factor which influences in many ways in contributing or building up of one's intelligence. Due to the existing social inequalities in India, to achieve the objective of egalitarianism through distributive justice, the State has to identify various interest, roles, powers and authorities in different sectors of human life.

Equality and Equality of Opportunity As Principles of Distributive Justice
In the individualistic approach, equality means the equal distribution of benefits of the State without any favorable consideration. This principle can be disputed in the modern jurisprudential point. Friedman’s words are much relevant in this context. He said that the principle of absolute equality between individuals of all classes and races could not be understood in a rigid sense. It did not mean the abolition of the natural differences, which any way, is not within man's power to abolish, but of man-made differences inherent in the organization of the society. It is the task of law, in democratic societies, to remove those inequalities.“ The significance of equality content in distributive justice is emphasized in the following definition put forward by Torstein Echoff:
"Distributivejustice is the term I shall use for those principles of justice which apply to situations of allocation. Their central idea is that recipients should be treated equally. Both retributive and distributive justice, then, are connected with equality."
The principle has been tailored into Indian Constitution through Article 14, the saviour of rule of law and distributive justice. The first part of Article 14 warrants that the State shall not deny to any person "equality before the law" and the second part guarantees "the equal protection of the laws". The former is somewhat a negative concept implying the absence of any special privilege in favour of an individual and providing for the equal subjection of all classes to the ordinary laws. The latter is a more positive concept implying the equality of treatment in equal circumstances as well as the unequal treatment of unequals. However, one dominant idea common to both the expressions is that of ‘equal justice'.
In a wider perspective equality on a principle of distributive justice amounts to no more than that man should all be treated in the same way, save where there is sufficient reason to treat them differently. The word sufficient reason has a relevance when determining to whom the benefit should be given. The value of equality demands the giving of a favorable treatment to the deprived and the weaker sections of the society to enable them to compete with fairness with the well-to-do and the more advanced members of the society.
While analyzing the concept of equality of opportunity in N.M. Thomas, Justice Mathew observed:
"The notion of equality of opportunity is a notion that a limited good shall in fact be allocated on the grounds which do not a priori exclude any section of those that desire it.... What, then, is a priori exclusion? It means exclusion on grounds other than those appropriate or rational for the good (posts) in question. The notion requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but that the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them".
Justice Mathew rightly construed the term equality of opportunity by maintaining equality as the main pillar of distributive justice. Accordingly, equality in fact may involve the necessity of differential treatment in order to attain a ‘result’ which establishes an equilibrium between different situations. In the final analysis, he said:
"Equality of opportunity is not simply a matter of legal equality. Its existence depends, not merely on the absence of disabilities, but on the presence of abilities. It obtains in so far as, and only in so far as, each member of a community, whatever his birth or occupation or social position, possesses in fact, and not merely in form, equal chances of using to the full his natural endowments of physique, of character, and of intelligence''.
Justice A.P. Sen in a case concerning the restoration of alienated laws of tribal people applied the principle of distributive justice by observing that law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of the society upon the principle of ‘from each according to his capacity to each according to his needs‘. He further said:
”Distributive justice comprehends more than achieving lessening of in equalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceilings on holdings, both agricultural and urban, or by direct regulation of contractual transaction, by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargaining should be restored their property".
He rightly observed that all such laws might take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of the society.
Similarly Justice Krishna Iyer emphasized the need for positive state action with a view to attaining equal partnership of the Scheduled Castes and Scheduled Tribes with others in our society, when he said:
''Re-distributive justice to harijan humanity insist on effective reforms, designed to produce equal partnership ofthe erstwhile 'lowliest and lost’, by State action, informed by short-run and long-run sociologically potent perspective planning and implementation. An uneven socio-economic landscape hardly gives the joy of equal opportunity and development or draw forth their best from man-power resources now wallowing in the low visibility areas of discontented life. "
In toto, the concept of equality involves an 'equ1ibrium creating“ or ‘equilibrium oriented“ compensatory discrimination. The summum bonum of the jurisprudential principle of Article 14, the savior of rule of law and distributive justice, is that the State has to adopt discriminative practices when unequals are involved.

Fair Equality of Opportunity
According to Rawlsian theory, justice of a social scheme depends essentially on how fundamental rights and duties are assigned and on the economic opportunities and social conditions in the various sectors of society. Rawls in his contractual theory of justice put forward two principles of justice in the following manner:
"First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
Second : social and economic inequalities are to be arranged so that they are both:
(a) Reasonably expected to be to everyone's advantage, and
(b) Attached to positions and offices open to all."
The first principle, i.e., the principle of equal liberty, envisages that all the citizens ofajust society are to have the same basic liberties such as political liberty together with freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of person and right to hold property.
These basic liberties are not to be sacrificed for the sake of increased share of other social goods. The second principle, i.e., the difference principle applies ‘to the distribution of income and wealth and to the design of organizations that make use of differences in authority and responsibility, or chains of command. While the distribution of wealth and income need not be equal, it must be to everyone’s advantage, at the same time, positions of authority and offices of command must be accessible to all'.
The justice principle warrants fair treatment or behavior by the State. If all are equal, the mathematical formula can be adopted. But when there are undeserved inequalities of birth and natural endowment, the question is: How can these inequalities be redressed? Rawls correctly answers that in order to treat all persons equally, to provide genuine equality of opportunity; society must give more attention to those with fewer native assets and those born into less favorable social positions.” The basic idea according to him, is the principle of redress i.e., ‘undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for.’
Rawls's principle of "fair equality of opportunity" is significant in its priority and distributive content. He suggests a serial order of strict priority for the different demands of justice. David Miller explicitly highlights the lexical ordering in the following words:
"An equal.liberty has first priority, followed by the demand for fair equality of opportunity. Only when these are fully satisfied can we turn to arranging social and economic inequalities so that they work to the greatest benefit of the least advantaged member of society".
The principle of fair equality of opportunity demands that positions and offices should be opened to all, i.e., they should be allotted on the basis of ability and skill rather than on the basis of birth or influence. The difference principle, which demands that inequalities are arranged so that the worst-off enjoy the maximum benefit possible, will normally ensure that basic needs are fully cared for. This principle forms part of the principle of fraternity.
Rawls's principle of justice is rooted in his basic bedrock of justice that ‘all social values — liberty and opportunity, income and wealth, and the bases of self—respect — are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage’ Dworkin went further by modifying the Rawlsian concept of justice in the following manner. According to him there are two different kinds of rights which individuals may be said to have. The first is the right to equal treatment which is the right to an equal distribution of some opportunity or resource. The second is the right to treatment as an equal, which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else. The right to equal concern and respect", according to him, is the most fundamental and even axiomatic of all rights. He said:
"Justice as fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice".
This right is owed to human beings as moral persons and follows from the moral personality that distinguishes humans from animals. Thus Dworkin emphasizes that ‘individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them’. Any arrangement for the allocation of social positions and goods has to be on the basis of this right.
Norman Anderson also added one further principle to Rawls' theory that 'the goal of equality of opportunity loses much of its cogency unless all that is feasible is done to put those who are disadvantaged by heredity or circumstances in a position to compete with others on as equal terms as can realistically be attained’.
The framers of the Indian Constitution had realized the significance of social justice principle when they tailored it into the preambles objectives and a separate chapter was devoted, the directive principles of state policy. As correctly observed by a jurist:
"A re-distribution of resources envisaged by the Directive Principles and the Preamble would certainly be much more radical and wide-ranging in its effect than the Rawls' difference and rational principles ...”
When there are many barriers on the access to position of authority, what sort of protection could be given to the worst-offs in the process of classifying the higher-ups and lower-downs ? Because, in an egalitarian democratic system, the State is duty bound to protect not only the equals but also unequals. In order to comply with the philosophy of Rawlsian theory of justice, the State has to adopt many tools and techniques to determine who constitute unequals. For that Rawls answered, 'that State can take the position of certain individual representatives and consider how the social system looks upon them‘.

Social Justice and Its Sociological Perspective
The administration of justice has a social dimension and society at large has a stake in impartial and even-handed justice. The relevance of the concept of social justice in Indian society is lucidly highlighted by Justice V.R. Krishna Iyer thus:
"In a democratic system with a socialist slant, afflicted by pervasive, poignant poverty and instant on planned development, social justice has a distinctive hue, 'egalite' a militant quality and human rights a radical thrust".
During nineteenth and twentieth centuries many countries became free from the clutches of colonization that led to the abandoning of laissez faire principle and embracing welfarism. This paved the way for protecting the individual's rights on the basis of social justice principle. This principle is the concomitant of a just State” which strives to promote the welfare of the people by securing and protecting a just social order. Social justice demands the abolition of all sorts of inequalities which result from inequalities of wealth and opportunity, race, caste, religion and title and harmonize the rival claims and interests of different groups and sections. Thus, it, inturn, affords equal opportunities to all citizens in social affairs as well as economic activities.
The basic assumption of this principle, according to David Miller, is that a man's sense of justice is affected by the nature of the relationship which he enjoys with other men. That is, the social structure of a particular society generates certain type of interpersonal relationship, which in turn gives rise to a particular way of assessing and evaluating other men, and of judging how benefits and burden should be distributed.
David Miller in his sociological perspective of social justice pointed out the intelligible connection between the structure of a society and its ideas of social justice. He observed that in "primitive societies", where the collectivism or group solidarity as against individualism was the order of the day, the traditional network of close personal relationships produced a commitment to the duties of generosity rather than to any concept of social justice. He emphasized:
"Primitive morality is therefore more concerned to establish what kind of action a person should perform in a given situation than to specify the precise claims which one person has against another. Justice is understandably not a prominent feature of primitive societies, whereas virtues such as generosity and sociability are".
Whereas, in "hierarchical societies" of the feudal type, the combination of firmly established social ranking and a degree of personal contact across ranks led to a primary emphasis on justice as the protection of established rights and a secondary emphasis on justice as the relief of the needy. He explained:
"Under feudalism justice is understood, first, as the obligation to respect established rights, and, second, as the obligation to help the needy, within the limits of one's social position:1ittle or no weight is given to the claims of desert".
However, in caste systems, the ‘purest types of hierarchical society', the individual is strictly confined within the caste of his or her birth and contact between members of different caste is kept to a minimum and the idea that men naturally belong to different ‘breeds’, rather than sharing a common humanity, can more easily take root.” In that society, claims of need were not at all regarded as a matter of justice.
Later in "market societies," where the social structure is created out of a series of contracts and exchange between otherwise free and equal individuals, a system of mutual interdependence is centered on the market.” The men are not bound by obligations of kinship and traditional status as in the primitive society and they have no fixed place in hierarchy and owe no allegiance to any supervisor as in hierarchical society.The impersonal exchange in relationships in this society leads to a new interpretation of justice as the requital or return of desert. This was supported by the view that an individual's abilities, skills and efforts which formed the basis of desert were seen as being within his control and any incapacity and failure of will on his part results not of external circumstances, but rather of inner weakness. Thus, the principle of social justice to each according ‘to his merit‘develops in this stage.
In the final stage i.e., the transformation of market society into an "organized one" which takes place chiefly by the rise of corporate groups, the concept of individualism gives way to the assumption that social good results from the rational co—ordination of the activities of the altruistic men, rather than from the free play of individualism. Thus the content of desert also changes and the principle of need is reintroduced in terms of social well being as a subsidiary criterion of justice.
Miller‘s emphasis on the proximity between the concepts of need and equality is noteworthy. According to him, the logical extension of the principle of need is the principle of equality, interpreted as the claim that every man should enjoy an equal level of well-being. Equality is achieved by giving first priority to the satisfaction of needs, and then by satisfying as large a proportion of each person's further desires as resources will allow.Thus, principle of need represents the most urgent part of the principle of equality.
While examining the relevance of Miller's concepts of social justice in Indian context, it can be seen that Indian society did not go through the third stage of market society as the western countries had undergone. The present trend of globalization pushes India only towards a consumer oriented society. However, India tried to enter into the fourth stage of development through its embrace] of welfarism. The country's old and obstinate hierarchical set up based on the caste system is yet to be broken. In this state of affairs, as it is observed, overemphasis of the traditional view of meritarian principle would be quite inappropriate and anomalous.

Justice and Social Engineering Theory

Roscoe Pound, the founder of social engineering theory, viewed that the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with least friction and waste. In his philosophy, the ultimate object of law is justice and it should be met out by balancing conflicting interests. Regarding justice, Roscoe Pound said:
"Looked at functionally, the law is an attempt to satisfy, to reconcile, to harmonize, to adjust these overlapping and often securing them directly or immediately, or through securing certain individual interests or through delimitations or compromises of individual interests, so as to give effect to the greatest total of interests or to the interests that weigh more in our civilization with least sacrifice of the scheme of interest as a whole".
According to him the, law is a means for balancing the conflicting interests. The inter-relationship of law and justice had been propounded by him in the following illuminating words:
If we come to an idea of maximum satisfaction of human wants or expectations. What we have to do in social control, and so in law, is to reconcile and adjust these desires or wants or expectations, so far as we can, so as to secure as much of the totality of them as we can."
The hall-mark of Pound's theory is that the law is an instrument of social engineering through which a balance between social interest and individual interest could be achieved. In balancing of the conflicting and overlapping interests, the experience developed by reason and reason tested by experience have significant role. The elimination of inequalities is one of the cardinal principles of this theory”.

Judicial RESPONSES: An Appraisal
The first attempt of an enquiry into the jurisprudential basis of protective discrimination was undertaken by Justice Subba Rao in his dissenting judgement in Devadasan.He brought forth the idea of giving practical content to the rule of equality of opportunity by the illustration of a horse race. He underscored the need for providing favoured treatment or ‘adventitious aids’ to backward communities in the following words:
"Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced cl. (4) in Article 16.”
Justice Subba Rao's perspective on Article 16(4) as not an exception, but an ‘untrammeled’ provision was the nascent attempt to harmonize and equalize the ever conflicting values of individual right and social justice.” The approach of Justice Subba Rao created a cataclysmic change in framing a theoretical foundation of protective discrimination in later cases. Thomas is an eloquent testimony to prove this. In this case the Supreme Court abandoned the conventional approach towards equality and protective discrimination and took an innovative step. The Court catapulted the exceptional and special provision of reservation on the position of the mandatory clause of equality of opportunity in employment. This approach supplemented the holding of Justice Subba Rao in Devadasan and thereby fortified the concept of reservation as a facet of equality of opportunity. In Thomas, the concept of equality underwent a drastic but dynamic import. The equality provision of the Constitution was interpreted as forming part of a same mutually supplementary code. Moreover, the provision of reservation was held to be an explanation or illustration or an emphatic statement of the mandate of general equality of opportunity. By holding that the content of equality should be result oriented and not mere formal equality and it not only necessitates ‘progressive elimination of pronounced inequality but also warrants affirmative governmental action and compensatory measures shows that the Ralwsian principle of redress has been read into the equality provisions. of the Constitution in Thomas.
Justice Krishna Iyer's perception of the whole question i.e., whether the distribution according to ‘merit of the individuals or according to the ‘need’ of the depressed groups reflects the ever-existing controversy of distributive justice.
Justice Mathew's view that the basis of allocation of limited goods must be on the principle of proportionate equality and nobody should be excluded from his or her share of representation without appropriate and rational grounds shows another contour of the complexity of distributive justice.
Justice Krishna Iyer viewed that re-distributive justice should be aimed at providing sufficient environmental facilities for developing the full human potential of the under privileged and this could be accomplished only when the utterly depressed groups could claim a fair share in public life and economic activity including employment under the State. This observation not only accommodates the Rawlsian concept of justice but also brings forth the idea of power sharing. This idea got fortified by Justice Mathew's analysis that equality of opportunity in matters of employment is comprised of the compensatory measures that need to be taken by the State with a view to putting the backward classes on par with the members of the other communities. This would in turn enable them to get their due share of representation in public service. By reading that the result oriented equality of opportunity aims to put backward classes on parity with the forward communities reveals Dworkin's concept of right to be treated as equals.
The Supreme Court further trod on the untraveled terrains of jurisprudence in Soshit Starting from the point of identifying the socio-economic rights as a part of human right, the Court went on to explore the theories of Dworkin and Rawls for their relevance and applicability in the Indian context of protective discrimination. Analyzing the Rawls's theory of justice, Justice Chinnappa Reddy said:
"If the statement that ‘Equality of Opportunity must yield Equality of Results‘ and if the fulfillment of Article 16(1) in Article 16(4) ever needed a philosophical foundation it is furnished by Rawls‘ theory of Justice and the Redress Princip1e".
Much light was shed by Justice Krishna Iyer on the idea of sharing the State's power. By holding that the special provision of reservation in the Constitution was not a jarring note but ‘fostered and furthered’ the idea of equality of opportunity, the Court re-emphasized its earlier position in Thomas. The Court's reformulation of the provision of reservation as a right and not a concession or privilege with a futuristic note that excellence and equality might co-operate fruitfully and need not compete destructively, is a significant attempt to reconcile the ever competing equalities within the single fabric of equality of opportunity in public employment. Justice Chinnappa Reddy got another opportunity for jurisprudential enquiry in Vasanth Kumar. He highlighted the necessity of extending need based justice to backward classes in the following words:
"They (the Scheduled Castes, the Scheduled Tribes and the other socially and educationally backward classes) need aid; they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of right and not philanthropy. They ask for parity and not charity".
By reading the claim of backward classes into equality as a matter of human and constitutional right, and treating their rights to equality on par with those of others, denotesithe Dworkin’s concept of right to be treated as equals. Justice Chinnappa Reddy’s analysis of the concept of backwardness on a three dimensional view of social inequality as propounded by Max Weber i.e., class, status and power is highly remarkable. He came to the conclusion that though poverty could be found as the culprit cause of the backwardness and the dominant characteristic, the ubiquitous caste system in India aggravated and complicated the matter.
This observation of Justice Chinnappa Reddy brought home a realistic approach of the Indian social milieu and it became a remarkable turning point in identifying and accommodating the caste factor in measuring the backwardness. His attempt to explode the myth of controversy between the meritarian principle and compensatory principle is another significant milestone in the path of the jurisprudential enquiry akin to David Miller's view that meritarian principle should not be over-emphasized in an egalitarian society.
The Supreme Court's jurisprudential enquiry transcended the Indian subcontinent and reached the land of America to share its experience of compensatory discrimination. It was in Mandal case that the Court, after analyzing the law and judicial decisions in the U.S., held :
"The U.S. Supreme Court has said repeatedly, if race be the basis of discrimination — past and present — race must also form the basis of redressal programmes though in our constitutional scheme, it is not necessary to go that far".
The Court's realization that race could be taken as a basis of redressal measures was instrumental in a realistic re-examination of the social dynamics of caste in India and arriving at a point of right direction that considerations of caste factor in determination of backwardness would not result in perpetuation of castism.
The concept of sharing of State's power received a steady movement towards a crystallized doctrine in Mandal case. The Court rightly perceived the value of employment in shaping the individual's self-esteem and self-worthiness and if it is a government employment it has an added edge in giving opportunity to participate in the State power. Thus, the Court reached at the right destination by canvassing the need for equal participation of all sections of society in the State power. This reflects the Court's upholding of the values of human worth and egalitarianism.

CONCLUSION
The above analysis of the judicial response reveals that the Indian judiciary had started its jurisprudential enquiry during the early period of its confrontation with the protective discrimination policies. The fillip of the journey was made by Justice Subba Rao in 1964 and the momentum was obtained in Thomas later. The Court since then recognised and applied various philosophical and legal thoughts for laying down a solid jurisprudential foundation of protective discrimination, a desideratum to build upon a sound and steady legal system.

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[ 2 ]. For a detailed account of the deliberations of the Constituent Assembly, See Ch. Ill.
[ 3 ]. Constitution of India 1950, Article 16 (1) reads : "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the
State".
[ 4 ]. Id., Article 16 (4) reads: Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State
[ 5 ]. S.N.M. Raina, Law Judges and Justice, Vedpal Law House, Indore (1979), p. 26.
[ 6 ]. C.K. Allen, Aspects of Justice (1.958), p. 28.
[ 7 ]. Otto A. Bird rightly said: "A theory of justice may cover much territory and include many topics and sub-topics, its range is vast in that justice is taken often as a kind of umbrella topic covering a wide variety of problems and considerations", The Idea of Justice,
Frederick A. Praeger, New York (1967). p. 7
[ 8 ]. Justice Mathew said: "I cannot define it, but know what it is", Upendra Baxi (Ed.), K.K.
Mathew on Democracy, Equality and Freedom (1978), p. 34. Harold Potter said: "... most men think that they understand the meaning of justice, but, in fact, their notions
Prove to be vague", The Quest of justice, (1951), p. 3. Alfred Denning said 1 "... what
Is Justice ? That question has been asked by many men far wiser than you or me and no one has yet found a satisfactory answer", The Road to Justice, Stevens and Sons Ltd,
London (1955), p. 4. Hans Kelsen said: "No other questions has been discussed so passionately; no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious thinkers from Plato to Kant; and yet, this question is today as unanswered as it ever was", What is Justice ? (1957) p. 1.
[ 9 ]. V.R. Krishna lyer, Social Justice - Sunset or Sundawn, Eastern Book Co., Lucknow
(1987), p.28.
[ 10 ]. Alfred Denning, The Road to Justice, Stevens and Sons Ltd., London (1955), p. 4.
[ 11 ]. "Justitia est constans etperpetua voluntasjus suum cuique tribuendi" is the famous precept of Justinian's Institutes which means that justice is the steady and increasing disposition to render every man his due. A.K. Sen, Justice for the Common Man (1967)
[ 12 ]. Morris Ginsberg, On Justice in Society, Penguin Books, England (1965), p. 64.
[ 13 ]. Julius Stone, Human Law and Human Justice, N.M. Tripathi, Bombay (1965), p. 9.
[ 14 ]. Joseph Pieper, Justice, p. 12, as cited in Sudhesh Kumar Sharma, Distributive Justice under Indian Consitution, Deep and Deep, New Delhi (1989), p. 22.
[ 15 ]. Giorgio Del Vecchio, Justice, University Press, Edinburgh (1952), p. 116. Emphasis in original. [ 16 ]. V.R. Krishna Iyer, Law Versus Justice: Problems and Solutions, Deep and Deep
Publications, New Delhi (1981), p. 9.
[ 17 ]. State 0f KeraIa V. N.M Thomas, A.I.R. 1976 S.C. 490 at p. 513.
[ 18 ]. E.g., "legal justice" denotes the justice administered between the parties to an action by the courts; "social justice" regulates the rights, privileges and duties of individuals considered as members of society; "restorative justice" restores to a person his or her rights; "distributive justice" attends to the distribution among men of the rights, privileges, immunities, duties and obligations including benefits and burdens which belong to them as members of society; "reparative justice" secures to the deserving man his dues;
"Retributive justice" gives undeserving man his deserts. Sudesh Kumar Sharma, supra n.
23 at pp. 18-19.
[ 19 ]. Nicholas Rescher, Distributive Justice, Bobs-Merrill Co., New York (1966), P. 5
[ 20 ]. Article 38 reads: "State to secure a social order for the promotion of welfare of the people — (1) The state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimize the inequalities in income and Endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst group of people residing in different areas or engaged in different vocations”
[ 21 ]. Article 39 reads: "Certain principles of policy to be followed by the State -—— The State shall, in particular, direct its policy towards securing —

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good;

(c) that the operation of the economic system does not result in the concentration of Wealth and means of production to the common detriment..."
[ 22 ]. Article 46 reads: "Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections — The State shall promote with special care the educational and economic interests of the weaker sections of the people, and , in particular, of Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation".
[ 23 ]. Constitution of India, Article 14 reads: "Equality before law ——- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
[ 24 ]. State of U.P. v. Deoman, A.I.R. 1960 S.C. 1125 per Subba Rao. J. (as he then was) at p.l134.
[ 25 ]. Supra n. 16.
[ 26 ]. Lingappa Pochanna v. State 0f Maharastra , A.I.R. 1985 S.C. 389 at p. 398. The decision, concerning the applicability of distributive justice, was followed by a Division Bench of the High Court of Assam in Joy Kama Hira v. State 0f Assam, A.1.R. 1988 Gau. 25 at p. 27per Saikia Actg. C1.
[ 27 ]. Supra n. 16.
[ 28 ]. John Rawls, A Theory ofJustice, Oxford University Press (1973), p. 7.
[ 29 ]. David Miller, Social Justice, Oxford University Press, London (1976), p.41.
[ 30 ]. The Constitution envisages the securing and protecting of social order in which justice — social, economic and political - shall inform all the institutions of the national life (Article 38), the right to adequate means of livelihood (Article 39 (a)), the material resources of the community are distributed to subserve the common good (Article 39 (b)), prevention of concentration of wealth (Article 39 (c)), equal pay for equal work (Article 39 (d)), the health and strength is not abused by sheer force of economic necessity (Article 39 (e}). childhood and youths are protected against exploitation (Article 39 (D).
[ 31 ]. S.M.N. Raine, Law Judges andJust:'ce, Vedpal Law House, Indore (1979), p. 28. The Constitution of lndia, Article 39 (2) envisages to minimize the inequalities in income, eliminate the inequalities in status, facilities and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations.
[ 32 ]. P.B. Gajendragadkar, Law, Liberty and Social Justice Asian Publishing House, New Delhi (1965), p.78.
[ 33 ]. T Devadasan v. Union oflndia, [1964] 4 S.C.R. 680.
[ 34 ]. Subba Rao, J., said: "To make my point clear, take the illustration of a horse race. Two horses are set down to run a race — one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight on a start from a longer distance. By doing so what would otherwise have been a farce of a competition would be made a real one".
[ 35 ]. Constitution oflndia, Article 16(4).
[ 36 ]. Constitution oflndia, Article 16(1).
[ 37 ]. Per Mathew, J. He quoted the following observation of Chandrachud, J. “‘‘It is obvious that equality in law precludes discrimination of any kind: whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes equilibrium between different situations". Ahmadabad St. Xavier's
College Society v. State of Gujarat, A.I.R. 1974 S.C. 1389 at p. 1433.
[ 38 ]. Akhil Bharatiya Soshit Karamchari Sangh (Rly) v. Union oflndia, (198 1)1 S.C.C.246.
[ 39 ]. K. C. Vasanth Kumar v. State ofKarnataka, A.I.R. 1985 S.C. 1495.
[ 40 ]. Indra Sawhney v. Union ofIndia, 1992 S.C.C. (L.&S.) Supp. 1.
[ 41 ]. Mandal Commission Report, Chapter IV.