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constitutional_law:part-1:protective-discrimination

Protective discrimination SC, ST and OBC

Affirmative action or positive discrimination is a policy of favoring members of a disadvantaged group. It is intended to promote the opportunities of defined groups within a society to give them equal access to that of the privileged population.India uses a quota system. A certain percentage of jobs or school vacancies must be kept for members of a certain group.

The Indian society is composed of groups and subgroups based on religion, sect, vocation, wealth, language, location and political affiliation. The powerful feature of the Indian society is its division into castes. Membership in the caste group is confirmed by birth and is unalterable. Brahmins are considered to be the highest while sudras the lowest. Sudras were considered clearly inferior to the other three castes. They were constrained to perform only menial jobs, forbidden to study the Vedas and enjoined to be deferential and subservient to the other castes. For various socio-cultural reasons, the Scheduled Castes popularly called (Harijans) could not even think of occupational mobility which could give them a better status in society.

The framers of the Indian Constitution, in their wisdom incorporated various provisions. It is intended to promote the opportunities of defined groups within a society to give them equal access to that of the privileged population.

Articles 330 to 342 deal with scheduled castes, scheduled tribes, Anglo-Indian community, backward classes granting special privileges. Article 341 empowers president to notify, territory wise, “castes, races or tribes or parts of our groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes”.

Article 330 provides reservation of seats for scheduled castes in the House of People and Article 332 in the State Legislatures. Article 334 lays down the specific period for which the reservation are to be continued.

The Constitution also provide for reserved seats, both in Parliament and state legislatures for the scheduled castes.

The policy of reservation pursued by the state to bring about social transformation of the scheduled castes is also known as “Protective discrimination”. For various socio-cultural reasons, the Scheduled Castes popularly called (Harijans) could not even think of occupational mobility which could give them a better status in society.

Article 15(1) states that, the state shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them'. It provides in clause (4) 'Nothing in this article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizen or for the scheduled castes and tribes.

Article 341 empowers president to notify, territory wise, “castes, races or tribes or parts of our groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes”.

Article 330 provides reservation of seats for scheduled castes in the House of People and Article 332 in the State Legislatures. Article 334 lays down the specific period for which the reservation are to be continued. The period was kept on increasing as the Congress and other political parties developed vested interest in the sustenance of reservations.

The Constitution of India authorises special preferential treatment not only for scheduled castes and tribes, but for “other socially and educationally backward classes”. They are communities other than the untouchables, or the scheduled castes and tribes. The Constitution speaks of 'classes' and not castes. The backward classes are by and large identified on a caste basis.

The Government of India has repeatedly suggested that it was better to apply economic tests than to go by caste. It is possible that the caste criterion would retard social cohesion and emotional integration by fostering divisive tendencies. Caste criterion goes against the secular spirit of the Constitution. Each state is given the freedom to prepare its own list of 'other backward classes' and most states have adopted the communal criterion, except in the state of Jammu and Kashmir and in the state of Kerala.

After the commencement of the Constitution, the Constitution (Scheduled Caste) Order, 1950 (in exercise of powers conferred by clauses (1'5) of respective Articles 341 and 342) on 10th August, 1950, the Constitution (Scheduled Tribes) Order, 1950 on 6th September, 1950 and the Constitution (Scheduled Castes) (Union Territories) Order, 1951 on 20th Sept. 1951 were issued by the President annexing Schedules incorporating castes or as the case might be, tribes or tribal community for respective states and respective Union Territories or parts thereof. The words “Union Territories” were added by the scheduled castes and scheduled tribes lists (Modification) Order 1956.

The Supreme Court in Bhaiya Lal V. Hari Kishan Singh made observed that under Article 341 the President might well come to the conclusion that not the whole caste, race or tribe but parts of or groups within should only be specified.

In Kishorilal's case the Supreme Court referring to the Tenth Report of the Commissioner for schedule castes and schedule tribe, laid emphasis on socio-economic conditions in classifying a particular caste as scheduled caste or scheduled tribe. The expression 'backward classes' is not defined anywhere in the Indian Constitution. The scheduled caste and scheduled tribes are no doubt backward classes. The Indian Constitution clearly shows that there are other backward classes besides the schedule castes and schedule tribes.

The Constitution recognizes three categories of backward classes, namely,

  1. scheduled castes- Sub-clause (24) of Article 366 defines scheduled castes and scheduled tribes respectively.
  2. scheduled tribes, Sub-clause (25) of Article 366 defines scheduled tribes.
  3. other backward classes-There is no clause defining socially and educationally backward classes of citizens.

The other backward classes, are those which are not as backward as the schedule castes and schedule tribes, but who are backward as compared to the other advanced sections of the society. The Constitution used different terminology for the other backward classes.

For example, Articles 15(4) and 340 use the words 'socially and educationally backward classes; Article 16(4) speaks of just 'backward classes'.

Even now, the term 'backward classes' is differently defined in the reports of the different backward classes commissions and the judgements of various High Courts and the Supreme Court of India.

The Constitution of India made certain provisions for the welfare of deprived social section is known as affirmative action, reservation policy and positive discrimination. The aims and objectives of the Constitution, the general agreement and the compromises arrived at in the Constituent Assembly are reflected in the various Articles and provisions relating to backward classes, e.g., the Preamble, Articles 38 and 46 of the Directive Principles of the State Policy, Articles 14, 15 and 16 of the Fundamental Rights and Articles 338 and 340 of the Constitution of India.

The Preamble of the Constitution express the determination and aspirations of the people of India in following terms: “….Justice, social Economic and Political, liberty of thought, expression, belief, faith and worship : Equality of status and of opportunity; and to promote fraternity among them all assuring the dignity of the individual and the unity and integrity of the Nation.”

The two objectives; justice-social, economic and political; and equality of status and opportunity of the Preamble are relevant and related to the advancement of the weaker sections and backward classes. The Constitution of India promises not only political democracy, but also social democracy. It means a way of life which recognizes liberty equality and fraternity which are not treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy from liberty. Nor can liberty and equality be divorced from fraternity”.

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Created on 2021/01/31 20:55 by LawPage • Last modified on 2021/01/31 20:55 by LawPage