The Irony Of Equality Vis-A-Vis Protective Discrimination in India

Article for Blog Post Writing Competition 2011 | by S.Nandini Pahari & Sanjeev.S


June 7th, 201112:04 pm


The framers of the Indian Constitution, emphasized upon certain aspects like Secularism, Integrity, Freedom and Equality. According to the Indian Constitution, there should be Equality on the basis of caste, religion, sex and so on. It is must for all the residents of the country to abide by these rules and regulations and make sure equality is maintained in all aspects. Such matters not only include right to knowledge, education, religion but also other areas like employment opportunities and benefits. It is clearly stated in Article 16(1) of the Indian Constitution, thatThere shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”. Introduction of such clauses provided security to all the citizens of the country irrespective of their religion, caste and sex and also helped in inspiring people to opt for the right path to lead life that would instigate honesty and fair practices throughout the country. Hence, the concept of “Equality” evolved.

The time when the Indian Constitution was made, India was going through a very rough phase and was extremely sensitive in several areas. One such area includes the underdeveloped people like the women and children and the Schedule castes and tribes, whose conditions were very vulnerable and needed immediate security. Thus, to help these backward people the Government made certain amendments so that these weaker sections of the society can come up at par with the more developed part of the society. One of such amendments was the introduction of Article 16(4) in the Indian Constitution, which states that equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. But it is also mentioned that, “Nothing in this Article shall prevent the State from making any provisions for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State”.

With the increasing democratization of governments, the fundamental problem has been to pull down the barriers of segregation and to offer equal opportunities to all. The aim of democracy has everywhere been to eliminate “Man made socially fostered, discrimination that has enlarged for some and has restricted for others’ avenues that lead to education, income and advancement.” However, this doesn’t mean a refusal to recognize the natural differences in character and intellect.

So far as the Ancient Indian Culture and Civilization is concerned, the Vedas and Smritis speak highly of equality and brotherhood- ‘Vasudhaika Kutumbakam’ (One World One Family). “The entire world is a family” was the motto of Vedic civilization. All had equal opportunity in all walks of life in ancient India. The Vedic age was more liberal in providing equal status to the people. Buddhism, Jainism, Shaivism, Vaishnavism, Sikhism and other indigenous Indian religions also preach the principles of brotherhood and equality.

The constitution of India guarantees equality, including sexual, to everyone(Articles 14 & 15). All laws which are inconsistent with the Fundamental Rights enshrined in the Constitution are void (Article 13). Yet religious personal laws that discriminate against women are still valid, not void, even after four decades after the adoption of the Constitution. The State has not adopted a consistent policy with regard to reform of religious personal laws.  The British and the successive Congress governments have extensively reformed the supposed Hindu personal law in order to give equal right to Hindu men and women. The personal laws of the so-called minorities are left virtually untouched, ostensibly because the leaders of these communities claim that their religious laws are inviolate. The present situation is that the women of the minority communities like Muslims continue to have unequal legal rights, thus resulting in gross practice of sexual discrimination.

Presently the movement of women into employment, which came at a later date in India than in many western countries, have experienced seeing Indian women move successfully into high positions in every possible field. This kind of movement brings in a variety of new problems, such as sexual harassment at work places, problems of ego and so on. These problems must be dealt with by institutions, i.e., laws against discrimination are to be enforced by the institutions.

On the other hand we find that almost for the last two decades there is an overwhelming majority in the nation that is still backward – socially, economically, educationally, and politically. From the above problems the framers of the Constitution of India felt it right to provide some special protection to the insecure and weaker parts of the society and hence evolved the concept of “Protective Discrimination”. In the case of Indira Swahney v Union of India also known as the Mandal Commission Case, for the first time the Indian Legal system took a valid step to substantially protect the minorities and under-privileged people by giving a very reasonable judgement. The Supreme Court of India laid down that socially advanced members of the backward class, the “Creamy layer”, has to be excluded from the backward class and the benefits of reservation under Article 16(4) which is only valid to a class which remains after the exclusion of the “Creamy layer”. But in the 77th Amendment to the Constitutionreservation in promotion to the Scheduled Castes and Scheduled Tribes has been permitted. Thus, by amending the Constitution, the Parliament has removed the base as interpreted by Supreme Court in Indira Sawhney that the appointment does not include promotion.

The irony that is prevailing in India is that though the boundaries and the exact meaning of the term the “Backward classes” of people have been clearly defined in the judgements in the cases starting from M.R. Balaji v. State of Mysore to Indira Sawhney and Ors. Vs. Union of India and Ors but still we find several groups of people exploiting these privileges by using the term “Backward classes” as a shield. It is commonly seen that quite rich people take undue advantage of the opportunities that have been given by State like reservations in workplace. Due to this people with merit and real potential are lagging behind. It is extremely important for the State to note that if such undesirable people go on interfering in every essential business and field, India’s efficiency as a whole would come down and this would take India down in every sphere if compared to the other countries of the world.

It was very valid and considerable on the part of the framers of our constitution to make such provisions when India as a country was going through not only internal but many external problems. The situation at that time demanded India to be united in power, culture and education so that we have greater quality strength to fight back the odds of the society. But it has almost been more than sixty years from the year when India finally got its freedom. Even today we find that these reservations are existing and due to this perhaps the Equality concept is getting violated in our countrywhere we find that there is massive misuse of power and the privileges that has been provided in order to make our country a better place to live in.

India is not the only developing or underdeveloped country that is facing sociological problems, as these problems still persist in most of the developed nations of the world, like the USA. But in USA there is no reservation policy as such and there is an affirmative action program for the minorities and especially for the African-Americans. India being a developing country is slogging in almost all facets to achieve its 2020 mission but for that there is a serious need for reconsideration of the reservation policy in India because the reservation policy compromises with the efficiency of a Country’s workforce, by not sincerely recognizing the merits of backward classes which therefore hamper the development of a country. Thus, reservation alone cannot be a solution and there must be a swift implementation of affirmative action programme in India especially when it comes to reservation in employment.

Article by-

S.Nandini Pahari and Sanjeev.S

Students, MATS Law School, Raipur (C.G)

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

Enter your Email Address to Get Similar Articles in your Inbox Free!

  

MightyLaws is not responsible or liable for the views expressed by the authors. The articles are general information and should not be treated as legal advice. Please read the Disclaimer for further clarifications.