Affirmative Principle: Making, Breaking and Shaking (MBS) Approach of Judiciary

Abstract

Affirmative Principle (AP) is the substratum for a just society. In the backdrop of its immense importance, countries across the globe have inculcated and sustained with AP by providing constitutional as well as legislative status. Judiciary as the roadmap of AP is crystal clear from the decisions of the various Courts. However, it is evident from the judicial verdicts that instability in the judicial approach resulted in the fluctuation of the sense of social justice in India. This paper conceptualizes those approaches under Making Approach (MA), Breaking Approach (BA), and Shaking Approach (SA). This threefold approach symbolizes the fact that on the one hand many of the cases decided by the Supreme Court of India (SCI) provoked way for AP by adopting MA and an equal number of the instances wherein SCI has scaled down the sanctity of the AP by invoking BA and SA. This changing nature of the judicial approach heightened the sense of insecurity amongst marginalized sections of the society. A substantial number of the decisions including the decision given Supreme Court of India on 25th August 2020 emphasizing the need for inner reservations, structurize the concept of social justice. There are an equal number of cases including the decision rendered by the Supreme Court of India on 22nd April 2020 invalidating 100% reservation provided for Scheduled Tribes in Scheduled Area in the State of Andra Pradesh is an added crisis to AP. The purpose of the present paper is to analyze the landmarking decisions rendered by the Supreme Court of India wherein social justice is interpreted in a sustained and intermittent manner. The researcher, based on the recent decisions of the Supreme Court, of the firm opinion, that understanding and interpreting AP in its loose sense would seriously dilute the sacred goals encapsulated under the Constitution. The purpose of the paper is to trace out the rationale of assessment of AP by the judiciary and to counter such rationale in the backdrop of the veracity of the AP.