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Section: B

Category: Article

Paper Code: RA-PN-16

Page Number: 338 -345

Date of Publication: February 10, 2021

Citation: Pallabi Nath, Protective Discrimination under the Constitution of India, 1, AIJACLA, 338, 338-345, (2021),

Details Of Author(s):

Pallabi Nath, LL.M 1st Semester, Tezpur University

ABSTRACT Over a great period, a certain section of the society had always been suffering from oppression and exploitation of all kinds. The malady of social disparities crippled the underprivileged and downtrodden classes so intensely that they became economically disabled for generations after generations. The founding fathers of the Constitution dreamt of an egalitarian society that would be free from prejudice and discrimination. To achieve this goal, bringing social and economic justice was of utmost importance. Henceforth, the essence of equality was embedded in the provisions of the Constitution. The Constitution of India assures Equality to all its citizens. However, absolute equality is impractical for the Indian society is diverse with culture, language, religion, and geography, and so forth. Applying similar laws to all in all circumstances would only instigate inequality. Thus, the makers of the Constitution applied their judicial mind for an affirmative action that would potentially accomplish the desired object. It was the idea of Protective Discrimination that added a new dimension to a great socio-economic maneuver. This essay endeavors to shed some light on the policy of positive discrimination as a cardinal principle for achieving social justice. This paper is based on doctrinal research and elaborates on the various constitutional provisions dealing with positive discrimination and judicial growth through decades. The task of delineating the compelling issues that have long been politically as well as judicially debated is beyond the purview of this paper. KEYWORDS Backward class, Discrimination, Equal protection of laws, Protective Discrimination, Reservation, Right to Equality, Scheduled Tribes, Scheduled Castes, Social Justice

INTRODUCTION Discrimination is predominant in every civil society. No society is immune to discrimination. From time immemorial, the Indian society has been compartmentalized, caste-ridden and stratified with hierarchy. Historically and even today systematically, a particular segment of the society being denied of the basic human rights by those claiming to be superior and privileged. Whilst the extreme forms of discrimination include genocide, ethnic cleansing, worst forms of slavery and legislated discrimination such as apartheid. Discrimination based on caste, sex, race, religion, nevertheless pervasive and oppressive, includes prejudice and social exclusion at the institutional level such as in schools, workplaces and the like are everywhere without exception.[1]The role of the socio-economic system and political institutions is significant. Inequitable practice by these institutions had created an imbalance in the society and certain classes of people particularly scheduled tribes, scheduled castes, and women became the victim of social and economic disabilities. And therefore, it is quite evident that these groups could not effectively enjoy their equality of status and opportunity. Not surprising that the basic postulate of the “right to equality” is pervading in the provisions of the Constitution of India. In the introductory statement, “We the People”, the Preamble prioritizes the authority that lies on the people of India. Intending to create an egalitarian society the framers of the Constitution weighted upon Justice, Liberty, and Equality of status and opportunity to all. Yet a country so diverse in language, geography, culture, and heritage it was preposterous to apply equal laws to all in similar circumstances. Ergo the expression “equal protection of laws” laid down with the underlying rule that “like should be treated alike and not that unlike should be treated alike[2]. It is known to be a pledge of the protection of equal laws.

PROTECTIVE DISCRIMINATION The policy of protective discrimination is an endeavor to achieve social justice in India. It aims at granting special privileges to the socially awkward and underprivileged section of the society, most commonly the scheduled castes, scheduled tribes, other backward classes, and women. These are the sections of people who often face racial or caste-based discrimination through centuries by the privileged classes on account of their differences based on sex, religion, place of birth, race, and most prominently based on the institution called the caste system. Efforts had been made by the founding fathers of the Constitution to address the malady through affirmative action. These actions are justifiably enshrined in the Constitution of India as “Protective Discrimination”. Protective Discrimination as an idea has been practicing by many civilized nations including developed nations like the USA because of their dark history of racial discrimination. In India, the Constitution of India through its various provisions guarantees the rights of the downtrodden and underprivileged by way of reservations or quota in educational institutions, jobs, and parliamentary privileges as well as command the legislatures to legislate special provisions for their overall advancement. Article 14 of the Constitution does not speak of mere formal equality but embodies real and substantive equality. The essence of equality as a facet of the Constitutional tenets adopted to strike out inequalities arising on account of vast social and economic disparities among the citizens and is thus consequently an indispensable element of social and economic justice.[3] However, absolute equality is impossible. The right to equality under part III of the Constitution therefore is not absolute and is subject to reasonable exceptions. Equality does not essentially mean that all laws should be universal and general in application neither all laws can be applicable in all circumstances. Explaining the concept of equality, the Supreme Court in Marri Chandra Sekhar Rao v. Dean, Seth G.S Medical College[4], observed that, equality must be a living reality for the people. Those who are unequal in status and opportunity cannot be treated by identical standards. Article 14 permits reasonable classification between potential underprivileged and privileged sections of citizens based on definite schemes but strikes out class legislation. Reasonable classification explains that classification or segregation must not be artificial, evasive, and arbitrary. Such classifications must be based on the rule of intelligible differentia which differentiates between different classes or group persons from those left out of the group. Most importantly, there must be rational nexus between the differentia and the object sought to be achieved.[5] Article 15(1) restricts the state from unreasonable bias or adverse distinction from one another only on account of caste, sex, race, religion, and place of birth. However, when the discrimination rests only on these grounds, Article 15(1) comes to play. There is an intrinsic correlation between article 14 and article 15. Whilst these articles guarantee equality of opportunity and equality of treatment to all, neither of these articles prohibits reasonable classification. It means that special treatment meted out to a particular class of citizen by the State on account of some special reasons and circumstances is justifiable, but should be on reasonable grounds.

CONSTITUTIONAL MANDATE Article 15(3) enables the State to confer special rights to women,[6] and children. This provision empowers the State to make special provisions and enactments in favor of women and children for their all-round upliftment in the society. This provision is specially designed to strengthen and improve the status of women.[7] Article 15(4) enables the State to make special provisions for the improvement of socially and economically backward classes of citizens specifically the Scheduled Tribes and Scheduled Castes. This provision was added in the Constitution by the First Constitutional Amendment Act in 1951 as a result of the decision given in State of Madras v. Champakam Dorairajan. It is important that the clause (4) is an enabling provision and does not obligate the State to take any action under it.[8] Article 15(5) was inserted in the Constitution in 2005 which enables the State to make special provisions concerning the reservation of seats in educational institutions. This clause enables the State to make special provisions for the advancement of socially and educationally backward classes through the reservation of seats or quota whilst admission into educational institutions, whether private, aided or unaided by the State. Claus (5) is however not an exception but only makes a special application of the principle of reasonable classification. Clause (6) to Article 15 inserted through the Constitution (one hundred and third Amendment) Act of 2019. This clause directs the State to make special provisions for the upliftment of economically weaker sections of the citizens concerning admission into educational institutions, including private, aided or unaided by the State. Whilst Article 16 (1) guarantees to all citizens equality of opportunity in matters relating to employment in public offices, clause (3) to (6) of Article 16 contains an exception to the rule of equality of opportunity incorporated in clauses (1) and (2). Clause (4) to Article 16 expressly permits the State to make provisions concerning the employment of backward classes of the citizens. This clause imposes discretion upon the State to make provisions for reservation of jobs to backward classes, which, the State believes is not adequately represented in the services of the State. In 1995 through the Constitution (Seventy-seventh Amendment) Act, Clause (4A) to Article 16 had been inserted in the Constitution. This provision enables the State to make provision concerning reservation in matters of promotions with consequential seniority, in favor of Scheduled Tribes and Scheduled Castes. Article 16(5) permits that, concerning the operation of affairs of any religious institution or denomination, the incumbent shall necessarily be a person professing a particular religion or belonging to a particular denomination. This exception may be read together with Article 25 to 28 that is fundamental Right to Freedom of Religion and the right of the minorities under Article 29 and 30.[9] Article 16(6) added to the Constitution through the Constitutional (one hundred and third amendment) Act 2019, which enables the State to make provisions for reservation in the matters of employment or appointments in favor of economically weaker sections of the citizens, subject to a maximum of ten percent in addition to the existing reservation. Article 46 imposes a duty upon the State for the promotion of educational and economic interests of the weaker section of the people, especially those belonging to Scheduled Tribe, Scheduled Castes, to protect them from the vicious cycle of all forms of exploitation and injustice. Article 336 speaks for the protection of rights of the Anglo-Indian Community in appointments in various sectors including railways, postal services, and customs. The Parliament in 2020 brought the Constitution (one hundred and fourth amendment) Act 2019, amended Article 334 which extended the reservation of seats to STs and SCs in the Parliament for a further ten years.

CARRY FORWARD RULE OF RESERVATION If in a particular year, the seats specifically reserved for the Scheduled Castes and Scheduled Tribes for appointment are not filled and remain vacant, such vacancies can be deserved after following the due procedure for dereservation, the vacancies can be filled by candidates of other communities. The unfilled reserved vacancies to be carried forward to the subsequent year. This is known as the ‘Carry Forward Rule’. In Devdasan v. Union of India[10], the validity of the rule has been challenged. The Supreme Court by a majority of 4:1struck down the carry forward of reservation stating unconstitutional on account of violation of right to equality of opportunity guaranteed by Article 16. Later in the landmark judgment of Indra Sawhney v. Union of India[11], overruling the judgment given in Devdasan Case, ruled that operation of carry forward rule is valid and should not in breach of 50% and most importantly, there shall be no reservation in matters of promotions. In 2000 the Parliament brought the Constitution (Eighty First Amendment) Act which inserted Clause (4B) to Article 16. This amendment removes the 50% ceiling on the carry-forward rule. Reckoning the established rule of carrying forward, it was envisaged that those reserved vacancies that are not filled are to be carried forward to the coming years and they are to be separated from the reserved vacancies of the current year. Unfolding the scope of Article 16(4B), it means that the reserved vacancies which would remain vacant in one particular year can be carried forward to subsequent years irrespective of the ceiling of 50% and are to be filled separately from the normal vacancy. The 81st Amendment upturned the decision given in the Indra Sawhney case.

JUDICIAL DEVELOPMENTS In Vishakha v. State of Rajasthan,[12]one another landmark judgment case in history, the Supreme Court held that women have a fundamental right to freedom from sexual harassment in the workplace. Equality Article 14 speaks for gender quality which includes protection from sexual harassment and the right to work with dignity. Air India v. Nargesh Meerza[13], known as the Air Hostesses case, Regulation 46 of Air India was challenged. The impugned regulation stated that Air Hostess to retire from services on attaining the age of 35 years or upon marriage, or on first pregnancy. The Supreme Court struck down the regulation being unconstitutional. The Court observed that such a cruel act is a straight insult to Indian womanhood and there should be no reason that stands in the way of her continuing service. In Government of A.P v. P.B Vijayakumar[14] , explaining the objective of inserting clause (3) to Article 15, the Supreme Court observed that, inserting the Clause is a realization of the fact that for centuries, in this country women have been socially and economically depressed. Hence, Clause (3) of Article 15was enacted for eliminating the backwardness of women and also for empowering them. State of Madras v. Champakam Dorairajan[15], a landmark judgment case on reservation, the decision of Madras Government to reserve seats in the State Medical and Engineering Colleges for different communities on the grounds of religion and caste in the proportion of students in each community was challenged as violative of Article 15(1). The state government contended that the order was made in furtherance of the Directive Principle of State Policy enshrined in Article 46 of the Constitution. Although the Apex court held the impugned order void, it was observed that the State must enforce only the justiciable provision of the Constitution. The court gave a literal interpretation to the Constitutional provisions which led to the insertion of Clause (4) to Article 15. Indra Sawhney v. union of India[16], well known as the ‘Mandal Commission case’, has a major impact on today’s reservation system of our country. The Supreme Court in this case by 6:3 majority laid down the ground rules for reservation. The decision of the Union Government to hold 27% reservation for socially and economically backward classes held constitutionally valid. Furthermore, the classification of backward classes into ‘backward’ and ‘more backward’ held not only permissible but essential. It was opined that the intention of inserting special provisions in the Constitution is not only to uplift a few individuals but ensuring the advancement of the backward class altogether. In-State of Kerala v. N.M Thomas[17]the dispute before the Court was whether preferential treatment to SC’s and ST’s comes under the permissible limit of Clause (1) of Article 16. In this case, the Supreme Court by 5:2 majority held that classification of employees belonging to SCs and STs that provided an extended period of two years for allowing them to pass the tests for promotion from other classes of employees was just and reasonable one that can be defended on the ground of providing rational nexus between such classifications and the object of promoting equal opportunities amongst all citizen for employment and appointment matters to the public offices. In a recent case of Ranveer Singh & Anr. v. Union of India, the Central Administrative Tribunal (CAT) observed that the scope of Article 15(3) is much greater than Article 16(4) of the Constitution. CAT upholds the reservation of 80% posts of Nursing Officer in favor of female in AIIMS. It was held that the said reservation is to be treated as a special provision for women candidates under Article 15(3) and a separate classification is held to be valid.

CONCLUSION The constitution of India via various provisions aims at eliminating disparities between different sections of the society and providing equality of status and opportunity. However, there has been a long-debated dilemma of preservation of rights of the historically oppressed and socially as well as economically backward classes of citizens and the privileged section simultaneously. All people mustn't be equal by their nature, attainment, and circumstances.[18] The changing needs of different classes of persons often require diverse treatment. Where the essence of the right to equality is pervading throughout the constitution, it also speaks of special treatment to a particular section. The very idea of granting special privilege to repressed and backward classes is termed as ‘protective’ or ‘positive’ discrimination. India has a dark history of oppression and violence on account of stratified hierarchy and a vicious caste system. Although after seventy-three years of independence of the country and we Indians enter the age of liberalization and globalization, the social system and mindset of the masses have remained the same. Understanding the very nature of the society, there should be different laws, applying differently in different places and circumstances. Application of the same laws parallel to everyone irrespective of the socio-economic differences may result in violation of the spirit of the right to equality. Henceforth, protective discrimination as a constitutional tenet for protection and preservation of the rights of scheduled castes, scheduled tribes, and other backward classes of citizens as well as women is highly recommended in our society. However many of the critics in contemporary times came forth to argue that, the principle of protective discrimination is antithetical to the rule of fairness enshrined in the Constitution.

[1] Barbara Harriss- White and Aseem Prakash; Social Discrimination in India: A case for economic citizenship; Institute of Human Development, rev.1, 12(2019), (Aug. 2020, 12, 10:11 PM), [2] A.V. Dicey, Law of the Constitution, 127, (3rd edn., acmillan and Co., 1889). [3] Secretary, H.S.E.B v. Suresh, AIR 1999 SC 1160. [4] Marri Chandra Sekhar Rao v. Dean, Seth G.S Medical College 1990(3) SCC 130. [5] K. Thimmappa v. Chairman, Central Board of Directors, SBI, AIR 2001 SC 467. [6] Shahdad v. Mohd. Abdullah, AIR 1967 J&K., 120. [7] Government of A.P v. P.B Vijay Kumar, AIR 1995 SC 1648. [8] N.T.R University of Health Sciences v. G.B.R Prasad, AIR 2003 SC 1947. [9] Narendra kumar, the Constitutional Law of India, 225 (2015). [10] Devdasan v. Union of India AIR 1964; SC 179. [11] Indra Sawhney v. Union of India AIR 1993 SC 477. [12] Vishakha v. State of Rajasthan AIR 1997; SC 3011. [13] Air India v. Nargesh Meerza AIR 1981 SC 1829. [14] Government of A.P v. P.B Vijayakumar AIR 1995 SC1648. [15] State of Madras v. Champakam Dorairajan AIR 1951; SC 226; SCR 525. [16]Indra Sawhney v. union of India AIR 1993 SC 477. [17]State of Kerala v. N.M Thomas AIR 1976; SC 490: (1976) 2 SCC 310. [18] Chiranjit Lal Chaudhary v. Union of India; AIR 1951, SC 41.

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