Abstract:
In the paper, the researcher will first give the brief introduction of the reservation policy together with its constitutionality in India and the Hedonistic theory or the theory of utility of Bentham. The principle of utility is a principle, which approves or disapproves of every action, according to the tendency, which it appears to have to augment or diminish the happiness of the person whose interest is in question. The same theory applies on the society by calculating the aggregate of collective pains and pleasures.
The reservation policy is an example of the proactive role of the State. Under this policy, the State gives a preferential treatment to the particular community based on the selective criteria. In this policy, the interest of the large number of people has to be sacrificed for the interest of the minority. The theory of utility argues that what we have to prefer is the interest of the majority, that is, which increases the pleasure of the society at whole. The theory apparently rejects the reservation policy. In this way, it would be worth doing the Benthamite analysis of the issue to judge the rightness of the policy of reservation.
Keyword:
Reservation, Principle of Utility, Felicific calculus, Equality, Non-discrimination, and Theory of Pleasure and Pain.
1. Introduction
The liberal world has come apart at the seams. The struggle for equal justice, which seemed to be going tolerably well, is at an impasse. There is no reliable way of telling who stands where anymore. Old standards no longer apply; old labels no longer fit. Friends, who once confidently shared a way of seeing the world and reacting to its problems, find themselves at odds- sometimes at bitter odds- over the question of reservation.
Reservation is one of the examples of an affirmative action of the State. Under this policy, the State gives a preferential treatment to the particular community based on the selective criteria. These criteria could be caste, sex, religion, place of birth, race so on and so far. In this policy, the interest of the large number of people has to be sacrificed for the interest of the minority. In other words, in the policy, there is all the time a conflicting situation between the interest of majority and minority.
On this conflicting situation of interests the Utility principle of Sir Jeremy Bentham, suggests that what we have to prefer is the interest of the majority, that is, which increases the pleasure of the society in whole. By the principle, we meant a principle that approves or disapproves of every action whatsoever, according to the tendency, which it appears to augment or diminish the happiness of the party whose interest is in question or what is the same thing in other words, to promote or to oppose that happiness. The same theory applies on the society by calculating the aggregate of collective pains and pleasures.
The principle apparently rejects the reservation policy. In this way, it would be worth doing the Benthamite analysis of the issue to judge the rightness of the policy of reservation.
Research Scheme:
In the starting part of this paper, the researcher will first explain the policy of Reservation and the arguments in favour and against it. The researcher will then focus on analysing the reservation policy in the light of the Principle of Utility of Bentham, and in the latter part of the project, he will enumerate his personal views over the topic.
Hypothesis:
The hypothesis on which the researcher starts this paper is that the Principle of Utility categorically rejects the policy of reservation in the name of doing well for the maximum number of people of a specific society.
2. Concept of Reservation
Though the Supreme Court in its various judgments has validated the concept of reservation, still a huge debate is going on here and there about its constitutionality and rightness. The term reservation has not been defined in the Indian Constitution but what we understand by this word in general is something to keep a certain portion for the use of certain group of persons only. From the sociological point of view, the Reservation policy is one of the mechanisms of the social adjustment to ensure the participation of the traditionally neglected sections of the society. It includes the fixation of quota for the depressed classes in the various organs of the government, admissions in educational institutions and employments in public sectors.
Those who are in favour of reservation says that ‘non-discrimination’ and ‘pro-active role of the state’ are the part of the same thing that is equality and both are collateral to each other.
We can understand their logic through this chart:
What they argue is that if both the concepts are collateral to each other, one cannot be the exception to the other. Therefore, according to them, concept of reservation is not an exception rather it is just an extension of the principle of equality.
On the other hand, those who oppose the concept argue that the interest of majority has to be sacrificed for the benefits of the minority. Therefore, reservations should not be allowed.
3. Principle of Utility of Bentham
Bentham was a London based moral, political, and legal philosopher. He believed that people are motivated primarily by desire for their own individual pleasure and dislike pain. He further said that pains and pleasures are our sovereign master. Pain and Pleasure will determine that,
a) What we shall do?
b) What we ought to do?
On this premise, he formulated the Principle of Utility as a single simple rule that is, “Act, so as to produce the greatest ‘good’ for the greatest number.” For this purpose, he further defined that ‘good’ is ‘happiness’ and ‘happiness’ is ‘pleasure’.
Therefore, the Principle of Utility is the principle that approves or disapproves of ‘every action whatsoever’, according to the tendency, which it appears to have to enhance or diminish the happiness of the ‘party whose interest is in question’, or what is the same thing in other words, to promote or to oppose that happiness.
For Bentham, 'every action whatsoever’ means every action of a private individual or every measure of the Government. Similarly, ‘party whose interest is in question’ includes community or an individual.
In order to be able to choose that what is ‘good’ for the community at large or for us particularly, we need to understand ‘the force of pleasures and pains’. In other words, we need to understand the ‘value’ of pleasures and pains. This value will be greater or lesser according to several ‘circumstances’ or dimensions’ that are of interest. The charts below list those aspects of pleasures that could be measured and estimated in regard to their effects upon individuals and groups:
Chart 1
What is being measured? = a Pleasure or pain (by itself)
In which regard? = To a single person
Dimensions:
1. Intensity (how strong)
2. Duration (how long)
3. Certainty (how sure)
4. Propinquity (how soon)
Chart 2
What is being measured? = Tendency of an action
In which regard? = To pleasures and pains
Dimensions:
5. fecundity (how many more)
6. Purity (How free from pain)
Chart 3
What is being measured? = a Pleasure
In which regard? = To other people
Dimensions:
7. Extent (how many are affected)
Apart from the above, Bentham defines certain terms also, which are as follows:
Community:
Bentham says that community is a fictitious body, composed of persons who are considered asconstituting as it were its members. The interest of the community then is the sum total of the interest of the several members of the community who compose it.
Interest of the individual:
A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures, or what is equivalent, to diminish the sum total of his pains.
5. Utilitarian approach towards the concept of Reservation
The policy of reservation in our country is a measure of the Government by which it seeks to uplift the weaker section of our society. As the word itself suggest, the concept of reservation is based on the policy of reserving certain rights of a weaker section of a society over rest of the inhabitants of the same society. Most often, it treats a minority group preferentially over a majority one. If we go through the principle of Utility, it talks about ‘every action whatsoever’ either, a measure of the government or of an individual action. That means the concept can be equally applied in the concept of reservation also.
The principle of utility apparently rejects the concept of reservation on the ground that it is against the interest of a candidate who, in spite of getting greater merit e.g. in the admission process of an educational institution, have lost his seat to the candidate of reserved category because of the policy of reservation. Utilitarians give their logic by saying that such an action diminishes the pleasure of the rejected candidate and increases his pain at the same time. Further, if the class for whom the reservations are made were a minority, as they often are, then the pleasure of the majority class would not be achieved by such action. To analyse the rightness of the concept in the light of the Principle of Utility of Bentham we should first calculate the value of pleasure or pain, this concept gives to the community as whole. For this purpose, we have to judge it according to the circumstances or dimensions given by Bentham, like:
a. Intensity:
It simply means ‘how strong’ or ‘how intense is the pleasurable experience’. That is if we provide for the reservation policy to uplift the weaker section of the society, how much pleasure it will give to the beneficiary. Obviously, the person, who has suffered the wrongs in the past and who do not have that equality in the level of status in the society, will find a greater degree of pleasure if we permit this action. However, what about the sufferings of the one who lost his seat, if we consider the above mentioned example here also, because of this reservation policy in spite of getting good marks in the admission test. Here one thing is to be noted is that by way of reservation, the weaker section of the society not only gets an opportunity in that particular field rather it helps him to come forward in the general areas of the society too. Considering all these arguments, the researcher can say that the pleasure of the beneficiary will be greater than the pain of the sufferer.
b. Duration:
The rightness of the concept of reservation is highly dependent on the duration for which, this policy is to be applied. Duration means how long will be the experience and pleasure it brings at last. If we consider this dimension of the Principle of Utility we see that if the duration of the policy of reservation is long, it increases the pleasure of the beneficiary because he can now enjoy the fruits of the policy for long term. However, what is the other aspect of this issue is that the long duration of the policy will, at the same time increases the pain of the sufferer. Higher the duration, higher will be the pain of the sufferer. In this way, the pain of the sufferer, at some time, will outshine the pleasure of the beneficiary if the policy will be implemented for a long period. Therefore, we can say that the long lasting application of the policy in some way or other will hamper the overall interest of the ‘community’ in long term, and because of this, Bentham’s utility somewhere permits only the short term reservations for the minority.
c. Certainty:
It simply means how sure he will be to get the pleasure. The government of India, whole-heartedly implementing the policy of reservation, lots of effort are being made by its organs for achieving the ends of the policy of reservation. As a result, there is a great degree of certainty for the future beneficiary to get the benefit of this policy. However, continuous steps should be taken by the government to raise the level of the beneficiaries so that they could reach up to that level where there is a certainty of the reservation policy. The chance of getting pain for the future sufferer would also be similar in the same manner.
d. Propinquity/Remoteness:
This dimension of Bentham’s ‘felicific calculus’ means that how soon the pleasure would be accessible? In India reservation is available without any hurdle. A candidate of a chosen class can exercise it as a right. However, one thing, which could be the barrier, may be the financial position of the candidate. A weak financial position may make it remote for the candidate, and in spite of having the right, he could not take the advantage of it. Accordingly, the financial position of the candidate may be the determining factor for calculating the value of this interesting perception of the beneficiary. However, the value of pain of the sufferer would be high coz whatever is the financial position of the beneficiary the sufferer cannot take the advantage of this policy.
e. Fecundity/Purity:
Fecundity means a chance that an interesting perception is followed by the sensation of the same kind that is pleasures, if it were a pleasure; pains, if it were a pain. Similarly, purity is something which means a chance that an interesting perception is not been followed by the sensation of the opposite kind that is pains, if it were a pleasure; pleasures, if it were a pain. Actually, fecundity and purity, as Bentham admits, are not the properties of pleasures and pains themselves. They are the properties of the actions by which they are produced. Therefore, these dimensions have to be judged, not in respect of the persons whose interest is in question but with respect to the action that has been taken.
From these dimensions, if we judge the reservation concept, then we will find that an action in favour of reservation will obviously cause the pain to the majority but this pain will be substituted by the greater value of pleasure in the end. What I am trying to say is that reservation may not be according to the interest of the majority in present but in the end, it would augment the pleasure of the society. Bentham does not consider this fact as ultimate criteria for giving reservation but he definitely treats it at par with other dimensions and at least considers this aspect of the action also.
f. Extent:
The simple meaning of this dimension is that how many persons are affected by the action or how far will the pleasurable experience spread? If we analyse the reservation policy of India in the light of this aspect, we will find that though, some of the dimensions of utility principle permits the short-term reservations, when it comes to this dimension, it rejects it considering the number of majority who is sufferer in this case. Therefore, the sum of the pleasures of the minority will be outshined by the sum total of the pains of the majority.
Conclusion
Considering all these dimensions, we can say that the principle of utility, somewhere suggests that the short-term reservation may be given to uplift the weaker section of the society. Moreover, through its fecundity/purity aspect, utility validates the policy considering the fact the fact that it would augment the pleasure of society in the end. However, as Utility gives an upper hand to the majority, the ‘extent’ dimension of this principle categorically rejects the policy of reservation.
What I believe is that the approach of this policy is futuristic. It is there in the society so that the one who suffered injustices in the past because of his social position would not subject to the same discrimination in the future. Though the principle of utility rejects the policy at last through its extent dimension, what we can do is that we can give short-term reservations to achieve our desired result. As far as principle of utility is concerned, I believe that no jurisprudential theory has universal applications. They are just like spices. One alone may not always serve your purpose but if you want to make a tasty food, you need all of them.
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