Introduction & Meaning Of Protective Discrimination
Oppression and suppression have a long history in India. Whether during the
Puranic era, the royal age, or the British reign, discrimination against some
communities has always existed. Long-time exploiters of these communities and
influential non-discriminating members of society have muted their cries for
help. Because of their extreme disadvantage, they were stripped of all financial
power and forced to live in poverty for generations on end.
The authors of the Indian Constitution envisioned a world without discrimination
based on race, color, caste, or gender, and one in which everyone is treated
equally. Many people continue to harbor dreams of achieving this. The
Constitution's authors thus used their judicial judgment to consider a positive
action that might lead to the achievement of the intended goal. An excellent
socioeconomic maneuver gained a new dimension thanks to the concept of protected
A method of ensuring social fairness in society is the practice of protective
discrimination. The most exploited and oppressed groups in Indian society are
the scheduled castes, scheduled tribes, other underprivileged classes, and
women; as a result, the Constitution tries to improve their lot in life by
giving them some specific advantages.
In India's Constitution, "Protective Discrimination" is rightfully defined as
the behavior in question. Many civilized countries, including industrialized
countries like the USA, have adopted the concept of protective discrimination
due to their sordid past of racial prejudice.
In India, these specific provisions for the oppressed and abused are offered as
quotas or reservations in educational institutions, employment opportunities,
and legislative privileges, and it requires the legislatures to enact special
laws for their general advancement.
Indian Backward Groups Need To Be Protected From Discrimination
In Marri Chandra Sekhar Rao v. Dean Seth G.S. Medical College (1990)
Supreme Court ruled that equality had to be a reality that individuals could
experience on a daily basis. It is impossible to treat people equally when they
are unequal in status and opportunity.
This issue is made worse by the fact that caste-based discrimination is a major
feature of Indian society, which targets particular communities. A long-standing
social issue, the caste system has its roots in ancient times. The caste system
is still in place and this is the sad irrefutable truth, even though the
Constitution forbids discrimination against these groups. Without any input or a
system for resolving disputes, lower
castes are forced to serve upper castes. This cruel and brutal situation
persisted for generations before "we the people" came to understand the disease
driving the legal system to establish laws, offer modifications, and improve the
lives of these individuals in an effort to elevate them to the same pedestal
that we all stand on.
Indian Laws And Rules From The Past That Provided Protection From
Article 16 has been modified to reflect two constitutional amendments (4).
- "Untouchability" is outlawed, and any instance of it being practiced is
considered a crime
- Promote economic and educational objectives, according to Article 46.
- Preference in hiring for positions in the public sector is covered by Articles
16 and 335.
- Seats in the Lok Sabha and State Assemblies are subject to reservation under
Articles 330 and 332.
- Scheduled Castes and
Tribes can now receive preference for promotions thanks to the Constitution's
77th Amendment, which went into force on January 1, 2019. As a result, by
amending the Constitution, Parliament has nullified the
Supreme Court's ruling in Indira Sawhney that an appointment does not
automatically translate into promotion. A change to Article 16(4)(B), which
states that "Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being filled up in that
year in accordance with any provision for reservation made under clause(4)," was
also brought about by the 81st Constitutional Amendment.
The Constitution (One Hundred Third Amendment) Act of 2019 introduced Article
16(6), which reads as follows: "No Government Authority or Any Other Person or
Authority shall prohibit the State from making any laws related to the
reservations of economically weaker sections; The laws made for their
reservation should not exceed ten percent."
Part IV of the Indian Constitution, the Directive Principles of State Policy,
was written under the impact of the socioeconomic provisions of the Karachi
Resolution. In order to defeat mass exploitation, Congress held that in addition
to political freedom, there also needed to be genuine economic freedom for the
millions of hungry people.
According to the Constitution's Article 15(3) and Article 15(4), the state is
free to enact special legislation protecting women's rights and the rights of
children, as well as measures aimed at assisting socially and economically
disadvantaged groups. Reservations may be made in educational institutions by
the state under Article 15(5).
Additionally, reservations for these economically and socially disadvantaged
sectors are covered in Articles 15 and 16 in order to advance their cause.
The Anglo-Indian Community's rights are protected by Article 336 when it comes
to hiring practices across a range of industries, including customs, postal
services, and railroads.
Is Discrimination Against People Of Lower Social Strata Based On Reservations
And Other Forms Of Protection A Permanent Right?
Who would deny that working for the government is both a luxury and a chance for
any person from a low-income background to succeed in both their personal and
professional lives? According to Article 335 of
our Constitution, it would appear that in light of this important factor, the
requests of individuals belonging to the scheduled castes, among others, will be
seen as being compatible with the upkeep of administrative effectiveness.
In all of India, the Supreme Court In "Anna Dravida Munnetra v. Union of India
, the court refused to accept a number of petitions requesting the
implementation of a 50% reservation for "Other Backward
Classes (OBCs)" in state-funded seats in the all-India quota for UG and PG
medical courses in TamilNadu, reasoning that "reservation is not a fundamental
right." Reservation has not been deemed to be a fundamental right by the Apex
Court at various points this year".
As a result, the decision to grant reservation in government positions,
educational institutions, and numerous other organisations is up to the
law-making bodies and is not a right that members of the socially and
economically disadvantaged portions of society may consistently seek.
Concept Of A Creamy Layer
The phrase "creamy layer" in Indian politics describes some members of a lower
socioeconomic class who have made significant advancements in their social,
economic, and educational standing. They represent that backward class's most
progressive individuals and are equally as progressive as any other members.
The phrase was first used in the Indra Sawhney case (1992)
, which discussed the
allocation of certain groups to specific jobs.
The family income categorizes the community and sets the creamy layer apart from
the rest. Only the OBC population is eligible for this classification, and it is
applicable. The benefits of reservations are always available to those who
belong to scheduled castes (SCs) and scheduled tribes (STs), regardless of their
family's financial situation.
It's been debatable about this for a long time. Many others and those who do not
receive such reservations agree that the ST-SC community should first be covered
by the creamy layer policy before receiving any further benefits, such as
reservations. They overlook the ongoing mental anguish and stereotype that
casteism, which is still pervasive in Indian society, has caused them to endure.
All other reservations remained unaffected; this only applied to reservations in
promotions. December 2019 saw the submission of a fresh appeal by the federal
administration to the Supreme Court.
Important Case Laws Related To Protective Discrimination:
In Mohan Kumar Singhania v. Union of India (1991)
, "The Supreme Court
explained that Article 16(4) is an enabling article that gives the state freedom
to make any provision or reservation for any backward class of citizens that is
not adequately represented in the state's service. The state government takes
the total population of the backward class and their representation in state
services, does the appropriate calculations, and then makes the reservation and
provides the percentage of reservation for the posts, which must be carefully
In Triloki Nath v. J & K State (II) Shah (1973)
, "the bench stated that a
test primarily based on caste, community, race, religion, sex, descent, place of
birth, or residency cannot be used to determine whether a section represents a
class for the purposes of Article 16 (4) since it would directly violate the
In A. Peeriakaruppan, etc. v. State of Tamil Nadu (1970)
, "the Supreme
Court stated that 'A caste has traditionally been considered a social group. If
an entire caste or community is socially, economically, or educationally
backward at any given period, that caste or group is considered a backward
class. This is because they form a class, not because they are members of that
caste or group".
In the case of Jagdish Negi v. State of U.P (1997)
, "it was stated that
backwardness is not a one-time occurrence. It can't go on indefinitely, and the
government has the right to examine the issue at any point".
Through a number of rules and clauses, the Indian Constitution seeks to level
the playing field for all people by eradicating inequalities between various
social groups and granting them all an equal chance at success. Positive
discrimination is a subject of increasing debate in India. However, because it
is primarily a social construct, democracy is not constrained by logic or
ethics. If a sizable segment of the populace is left behind in the development
race and is thus unable to take advantage of the equality of opportunity
guaranteed to all Indian residents as a fundamental right, the nation cannot
Long-debated issues include how to uphold the rights of the privileged group as
well as historically oppressed, economically and socially disadvantaged people.
India's history of tyranny and bloodshed is bleak because of its rigid caste
system and hierarchical structure. Even though the nation and we Indians have
been free and independent for 74 years and as we go towards the liberalization
and globalization eras, the social structure and general outlook on life have
Different laws, applicable differently in various locations and situations,
should exist in order to reflect the very essence of society. Infringing on the
spirit of the right to equality may occur from applying the same laws to
everyone equally, regardless of socioeconomic differences.
Therefore, it is strongly advised in our society to use protective
discrimination as a constitutional principle to defend and preserve the rights
of women, members of scheduled castes and tribes, and other underprivileged
groups of people. Let's hope the decision-makers step up to the plate and make
sure that any loopholes are closed so that these folks can be absorbed quickly
into government services and positions.