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
This essay endeavors to shed some light on the policy of positive discrimination
or protective discrimination. This paper is based on doctrinal research and
elaborates on the various constitutional provisions dealing with positive
discrimination and right to equality. The task of delineating the compelling
issues that have long been politically as well as judicially debated is beyond
the purview of this paper.
"As long as poverty, injustice and gross inequality persist in the world, none
of us can truly rest" -- Nelson Mandela
Democracy can only thrive and flourish where the individuals in the society are
treated equally and without discrimination. Thus, it was felt by the framers of
the Constitution to incorporate such provision to remove the hurdle of existing
social and economical inequalities and enable the diverse communities of the
country to enjoy the rights and liberties guaranteed under the constitution.
Though absolute equality is not possible in the perspective of Indian society
this thing was felt by the framers of the constitution and they introduced the
policy of protective discrimination to achieve social justice in India. It aims
at granting special privileges to the socially backward 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 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.
Meaning of right to equality:
The right to equality means that every person, who lives within territory of
India, has the equal right before the law. The meaning of this all are equal in
same line. No discrimination based on religion, race, caste, sex, and place of
birth. Its mean that all will be treated equally .and there will be no
discrimination based on lower or higher class.
Meaning of protective discrimination:
Protective discrimination is the policy of granting special privileges to the
downtrodden and the underprivileged sections of society, most commonly women.
These are affirmative action programs, most visible in both the United States
and India, where there has been a history of racial and caste discrimination.
The practice is most prominent in India, where it has been enshrined in the
constitution and institutionalized
Constitutional Provision about right to equality:
Equality before the law (Article 14)
Article 14 treats all people the same in the eyes of the law. This Article is
described in two parts - which states and commands the State not to deny to any
person 'equality before the law'. Another part of it also commands the State not
to deny the 'equal protection of the laws'.
This provision states that all citizens will be treated equally before the law
and avoids any kind of discrimination. The law of the country protects everybody
equally. Under the same circumstances, the law will treat people in the same
Prohibition of discrimination (Article 15)
This article prohibits discrimination in any manner. This article secures the
citizens from every sort of discrimination by the State, on the grounds of
religion, race, caste, sex or place of birth or of them.
No citizen shall, on grounds only of race, religion, caste, place of birth,
sex or any of them, be subject to any liability, disability, restriction or
condition with respect to:
Constitutional Provision about Protective Discrimination:
- Access to public places, Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the general public
- The article also mentions that special provisions can be made for women, children, and the backward classes notwithstanding this article.
- Equality of opportunity in matters of public employment (Article 16)
- Article 16 provides equal employment opportunities in State service for all citizens.
- No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent, or residence.
- Exceptions to this can be made for providing special provisions for the backward classes.
- Abolition of untouchability (Article 17)
- Article 17 prohibits the practice of untouchability. Untouchability is abolished in all forms. Any disability arising out of untouchability is made an offence.
- Abolition of titles (Article 18)
- Article 18 abolishes titles. The State shall not confer any titles except those which are academic or military titles. The article also prohibits citizens of India from accepting any titles from a foreign State. The article abolishes the titles that were awarded by the British Empire such as Rai Bahadur, Khan Bahadur, etc.
- Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.
The above discussed constitutional provisions provide for a general rule that
the State cannot discriminate among its citizens. But as we all know weaker
sections had been left miles behind due to the discrimination they had been
forced to face, so to bring them at par with other sections of society some of
the articles of our constitution provides for an exception to the general rule
of non-discrimination. In some of the articles protective discrimination has
been provided in constitution.
Article 15(3) says that nothing in article 15 shall prevent the State from
making any special provisions for women and children.
Article 15(5) added by 93rd Constitution Amendment Act, 2006 provides that
nothing in article 15 or in sub-clause (g) of clause(1) of article 19 shall
prevent the state from making any special provision, by law, for the advancement
of any socially and educationally Backward classes of citizens or for the
Schedule Caste or Schedule Tribes in so far as such special provisions relate to
admission to educational institution including private educational institutions,
whether aided or unaided by the state, other than the minority educational
institutions referred to in clause (1) of Article 30.
Article 15(6) this clause added by 103rd constitutional amendment. Nothing in
this article or sub-clause (g) of clause (1) of article 19 or clause (2) of
article 29 shall prevent the State from making:
- any special provision for the advancement of any economically weaker
sections of citizens other than the classes mentioned in clauses (4) and
- any special provision for the advancement of any economically weaker
sections of citizens other than the classes mentioned in clauses (4) and (5)
in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30, which in the case of
reservation would be in addition to the existing reservations and subject to
a maximum of ten per cent. of the total seats in each category.
Article 16(4) enables the State to make provision for the reservation of posts
in government jobs in favour of any backward classes of citizens which, in the
opinion of the State, is not adequately represented in the services of the
Article 16(4-A) added by 77th Amendment, 1995 empowers the State to make any
provision for reservation in matters of promotions for SC and ST's which , in
the opinion of the state, are not adequately represented in the services under
Article 16(6) inserted by 103rd Amendment in the Constitution to provide up to
10 per cent reservation to the economically weaker section.
Article 330 provides for the reservation of seats for Schedule Castes and
Schedule Tribes in the autonomous district of Assam..
Article 332 provides for the reservation of seats for Schedule Caste and
Schedule Tribes (except Schedule Tribes in the autonomous District of Assam) in
the Legislative Assemblies of every state.
Rule of Legislative Classification:
For effective implementation of laws, it is necessary for legislation to group
individuals according to their equal and unequal aspects. Such classification is
necessary because not every law has universal application to all persons, the
reason being the differences in social, cultural and economic conditions.
Varying needs of different individuals require to be differently approached by
For public welfare, property, person, and occupations require appropriate
legislation to make certain that different needs are dealt with differently. In
fact, general treatment of unequal conditions might lead to inequalities in
society. Thus, such special classification by the legislature on reasonable
grounds becomes necessary to reduce inequalities in society.
There are many instances of such special laws applying only to a particular
class or classes of people like Delhi Special Police Act 1946 (applying
particularly to the occupation of police), Minimum Wages Act 1948 (applying to
minimum wage system of certain employments), etc. Article 14 permits reasonable
classification but prohibits class classification.
Test of valid classification:
The classification must be just and reasonable and should be in relation to the
need and purpose of law in respect of which classification is made.
The object of classification should be lawful. In the case of Subramanian Swamy
v.CBI, it was held that if the object itself is discriminatory, then the
explanation that classification is reasonable having a rational relation to the
object sought to be achieved is immaterial."
When certain classes of individuals are not included in the ambit of a
particular law, there must be a reasonable basis for such exclusion.
A test was formulated to ensure that the classification is valid and is not
arbitrary or against the right to equality. Following two conditions should be
fulfilled for a valid classification:
Intelligible differentia (Intelligent reason for classification):
Rational Nexus (Relationship between classification and desired result):
- Intelligible differentia means difference which is apparent and capable
of being understood.
- Classification distinguishing persons or things that are grouped
together from others left out of the group should be based on an intelligent
reason.Classification must be based on a just objective to be achieved.
The differentia must have a rational relation to the object of the statute in
Interpretation of article 14 by Judiciary:
Certain important principles have been laid down in some landmark judgments to
further explain the concept of Article 14 and legislative classification. Some
of which are mentioned below.
Single person laws:
Charanjit Lal Chowdhury v. Union of India
Central Government issued an ordinance which later became an Act named 'The
Sholapur Spinning and Weaving Co. (Emergency provision) Act 1950' when due to
mismanagement and neglect of the company a mill was closed. The action of the
company led to the scarcity of essential commodities in the country apart from
unemployment and unrest.
it was augmented by the petitioner that the Act was violative of Article 14
because a single company was subjected to disabilities.Supreme court dismissed
the petition and held that a law can be constitutional even though it relates to
a single individual if, on account of some special circumstances, or reasons
applicable to him and not applicable to others, that single individual can be
treated as a class by himself.
Classification without a difference:
P. Rajendran v. State of Madras
There is a provision relating to district-wise seat distribution in the State
Medical colleges according to the proportion of population in a district to the
total population of the state.
The Court struck down the provision and held that any scheme of admission should
be devised to select the best available talent for admission as it is
discriminatory to select a less talented candidate against a talented candidate
just on a population basis. The district-wise seat distribution doesn't meet the
Special courts and procedural inequalities:
Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. Of Greater Bombay
Validity of certain provisions of amended Bombay Municipal Corporation Act 1888
and of Government Premises (Eviction) Act 1955, was questioned as certain powers
were conferred by the said acts on the authorities to proceed with special
eviction proceedings against the unauthorized occupants of the governmental and
corporation premises. Availability of two procedures, one under CPC and one
under the above two acts, with no guidelines as to which to follow. Thus, in
violation of Art 14.
SC held that when the statute authorizes the executive to make classification,
some guidance should be provided by such statue whether in form of Preamble or
objectives or other analogous provisions. When sufficient guidance is provided
by the act, it is sufficient indication for authorities to proceed under the
special procedure according to objective of the Act and not according to
procedure of the ordinary civil court. Thus, the act cannot be struck down only
because it provides for special procedure.
Maneka Gandhi v. UOI
Maneka Gandhi was issued a passport under the Passport Act 1967. The regional
passport officer, New Delhi, issued a letter addressed to Maneka Gandhi, in
which she was asked to surrender her passport under section 10(3)(c) of the Act
in public interest, within 7 days from the date of receipt of the letter. Maneka
Gandhi immediately wrote a letter to the Regional Passport Officer, New Delhi
seeking in return a copy of the statement of reasons for such order. However,
the Ministry of External Affairs refused to produce any such reason in the
interest of the general public.
SC held that Article 14 requires observance of principles of natural justice and
the requirement of reasoned decisions.
When classification is left to the discretion of the executive in a statue,
certain guidelines or policies should be there as to how to exercise such
discretion in the statue. If no guidelines are given such an act will be held
violative of Article 14 and such legislation would be struck down by the court.
It is not necessary for the legislation to expressly lay down such guidance, it
can be inferred from its Preamble, objectives and other analogous provisions.
Basis of Classification:
Classification can be based on geographical or territorial grounds, historical
considerations, nature and position of a person, nature of the business,
reference of time, object of the law, etc.
Provided that the classification has a nexus with the object of the legislation.
P. Rajendran v. State of Madras as discussed above.
Expanding horizons of equality:
According to recent trends in the judgments of the Supreme Court, the
reasonableness of the State action is required to meet the demands of Article
14. It is the duty of the State to make policies and laws which try to diminish
inequalities and make equal opportunities available to those who are equal and
different for those who are unequal.
Evolution of protective discrimination by Indian Judiciary:
In Vishakha v. State of Rajasthan
, 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
Air India v. Nargesh Meerza
, 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
In Government of A.P v. P.B Vijayakumar
, 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
State of Madras v. Champakam Dorairajan
, 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
, 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
In State of Kerala v. N.M Thomas
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.
Janhit Abhiyan vs. Union of India
After the passing of the Constitution (One Hundred and Third Amendment) Act,
2019, for EWS reservation several writ petitions, and special leave to appeal
were filed in order to deem the said amendment as unconstitutional and a breach
of the basic structure doctrine. By virtue of this amendment, the state became
empowered to make special provision regarding reservation for the economically
weaker section with an upper limit of 10% by virtue of addition of Articles
15(6) and 16(6) in the Constitution of India.
The Supreme Court held that 103rd Constitution Amendment cannot be said to
breach the basic structure of the Constitution by permitting the State to make
for reservation of economically weaker section.
Though the general rule laid down in our constitution provides that all the
citizens of India are equal and they cannot be discriminated on the basis of
race, caste, sex or place of birth, some of the exceptions are also provided as
to that general rule which speak of protective discrimination.
Weaker section of
society has been lag behind in the race of life so for their upliftment and
protection and to bring them at the equal status with other sections of society
protective discrimination is basic requirement of our democracy. Since
Independence there has been a great change in the condition of the weaker
sections in India but still the ultimate destination is miles away.
Award Winning Article Is Written By: Mr.SK Noor Mahammad
Authentication No: JL355935675593-12-0723