File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Non Discrimination And Protective Discrimination

What Is Discrimination?

According to its most simple definition, racial discrimination refers to unequal treatment of persons or groups on the basis of their race or ethnicity. In defining racial discrimination, many scholars and legal advocates distinguish between differential treatment and disparate impact, creating a two-part definition: Differential treatment occurs when individuals are treated unequally because of their race.

Disparate impact occurs when individuals are treated equally according to a given set of rules and procedures but when the latter are constructed in ways that favor members of one group over another . The second component of this definition broadens its scope to include decisions and processes that may not themselves have any explicit racial content but that have the consequence of producing or reinforcing racial disadvantage.

Beyond more conventional forms of individual discrimination, institutional processes such as these are important to consider in assessing how valued opportunities are structured by race.

A key feature of any definition of discrimination is its focus on behavior. Discrimination is distinct from racial prejudice (attitudes), racial stereotypes (beliefs), and racism (ideologies) that may also be associated with racial disadvantage . Discrimination may be motivated by prejudice, stereotypes, or racism, but the definition of discrimination does not presume any unique underlying cause.

Racial and Ethnic Discrimination

Racial discrimination results in unequal treatment between individuals on the basis of real and perceived racial differences. It may manifest on every level of social life, from minor disregard or intense hostility in interpersonal interactions to much larger instantiations in public institutions (also called structural or institutional discrimination), such as the segregatory practices prominent in the Jim Crow era of the Unites States (1870s-1960s).

Sex, Gender and Gender Identity Discrimination
Though what constitutes sex discrimination varies between countries, it essentially refers to an adverse action taken against a person based on their perceived sex, gender, and/or gender identity. Historically, sexual differences have been used to justify different social roles for men and women. Unfair discrimination usually follows the gender stereotypes held by a society.

Religious Discrimination

Religious discrimination is prejudicial treatment of a person or group differently based on their spiritual or religious beliefs (or lack thereof).

In a 1979 consultation on the issue, the United States commission on civil rights defined religious discrimination in relation to the civil rights guaranteed by the Fourteenth Amendment to the United States Constitution, which deals with due process and equal fairness of all citizens under the law.

According to the commission, religious discrimination occurs when someone is denied ” the equal protection of the laws, equality of status under the law, equal treatment in the administration of justice, and equality of opportunity and access to employment, education, housing, public services and facilities, and public accommodation because of their exercise of their right to religious freedom. ”

Reverse Discrimination

Reverse discrimination is a term referring to discrimination against members of a dominant or majority group, including the city or state, or in favor of members of a minority or historically disadvantaged group. Groups may be defined in terms of race, gender, ethnicity, or other factors.

This discrimination may seek to redress social inequalities where minority groups have been denied access to the same privileges of the majority group. In such cases it is intended to remove discrimination that minority groups may already face.

Reverse discrimination may also be used to highlight the discrimination inherent in affirmative action programs.

How Can We Measure Discrimination?

More than a century of social science interest in the question of discrimination has resulted in numerous techniques to isolate and identify its presence and to document its effects . Although no method is without its limitations, together these techniques provide a range of perspectives that can help to inform our understanding of whether, how, and to what degree discrimination matters in the lives of contemporary American racial minorities.

What Is Non Discrimination?

The principle of non-discrimination seeks “to guarantee that human rights are exercised without discrimination of any kind based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status such as disability, age, marital and family status, sexual orientation and gender identity, health status, place of residence, economic and social situation”.

What Is 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.

The need to discriminate positively in favour of the socially underprivileged was felt for the first time during the nationalist movement. It was Mahatma Gandhi, himself a devout Hindu and a staunch believer in the caste system, who was the first leader to realise the importance of the subject and to invoke the conscience of the upper castes to this age-old social malady of relegating whole communities to the degrading position of “untouchables”.

The Constitution of independent India which largely followed the pattern of the Government of India Act, 1935, made provisions for positive discrimination in favour of the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted about 23% of the divided India’s population. Besides reserving parliamentary seats for them they were given advantages in terms of admission to schools and colleges, jobs in the public sector, various pecuniary benefits for their overall development, and so on.

The constitution indeed guaranteed the fundamental right of equality of all citizens before the law but it also categorically laid down that nothing in the constitution “shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedules Castes and the Scheduled Tribes”.

Studies of Law and Legal Records
Since the civil rights era, legal definitions and accounts of discrimination have been central to both popular and scholarly understandings of discrimination. Accordingly, an additional window into the dynamics of discrimination involves the use of legal records from formal discrimination claims.

Whether derived from claims to the Equal Employment Opportunity Commission (EEOC), the courts, or state-level Fair Employment/Fair Housing Bureaus, official records documenting claims of discrimination can provide unique insight into the patterns of discrimination and anti-discrimination enforcement in particular contexts and over time.

Roscigno, for example, analyzed thousands of “serious claims” filed with the Civil Rights Commission of Ohio related to both employment and housing discrimination. These claims document a range of discriminatory behaviors, from harassment, to exclusion, to more subtle forms of racial bias.

Although studies relying on formal discrimination claims necessarily overlook those incidents that go unnoticed or unreported, these records provide a rare opportunity to witness detailed descriptions of discrimination events across a wide range of social domains not typically observed in conventional research designs.
  • Article 17: Abolition of “untouchability” and making its practice in any form a punishable offence.
  • Article 46: Promotion of educational and economic interests.
  • Article 16 and 335: Preferential treatment in matters of employment in public services.
  • 330 and 332: Reservation of seats in the Lok Sabha and State Assemblies.

Later, the job-related positive discrimination was extended to government-supported autonomous bodies. A 1974 Government order laid down that all such bodies which employed more than 20 people, and where 50% of the recurring expenditure was met out of grants-in-aid from the Central Government, and which received annual grants-in-aid of at least Rs.200,000 should invariably provide for reservation of SCs and STs in posts and services. The general rule which exempted the scientific and technical posts from the purview of positive discrimination was applicable to the autonomous bodies too.

Is Discrimination Still A Problem?

Simple as it may be, one basic question that preoccupies the contemporary literature on discrimination centers around its continuing relevance. Whereas 50 years ago acts of discrimination were overt and widespread, today it is harder to assess the degree to which everyday experiences and opportunities may be shaped by ongoing forms of discrimination. Indeed, the majority of white Americans believe that a black person today has the same chance at getting a job as an equally qualified white person, and only a third believe that discrimination is an important explanation for why blacks do worse than whites in income, housing, and jobs.

Academic literature has likewise questioned the relevance of discrimination for modern-day outcomes, with the rising importance of skill, structural changes in the economy, and other nonracial factors accounting for increasing amounts of variance in individual outcomes Indeed, discrimination is not the only nor even the most important factor shaping contemporary opportunities.

Nevertheless, it is important to understand when and how discrimination does play a role in the allocation of resources and opportunities. In the following discussion, we examine the evidence of discrimination in four domains: employment, housing, credit markets, and consumer markets. Although not an exhaustive review of the literature, this discussion aims to identify the major findings and debates within each of these areas of research.

A Spectre of Two India’s
In the current context the most critical question is whether two Indias are being created by two diametrically opposite socio-political forces-the demand for modernisation on the one hand bolstered by the opening up Affirmative Action in India 163 of the economy and its integration into the techno-intensive global economy -- and on the other, the demand for social justice undermining the core of that theory. One calls for the withdrawal of the state and the other assigns to the state the role of the greatest dispenser of equity.

Against this background it would be increasingly difficult for the state to implement its policy of reservations especially where the OBCs are concerned. On the one hand the number of government jobs is shrinkig while on the other pressure for more jobs is mounting.

There is yet another related issue. Greater liberalisation of the economy means more modernization of trade and industry. The traditional vocations of the backward classes such as cleaning, haircutting, fishing and tanning are under threat of being controlled by the upper castes particularly in the urban areas. With the growing use of technology in these trades they are no longer looked down upon as occupations. Therefore, the backwards cannot depend any more upon the state; they would have to respond to the market as well. This brings into question the broader recommendation of the Mandal Commission.

Conclusion
Discrimination is not the only cause of racial disparities in the United States. Indeed, persistent inequality between racial and ethnic groups is the product of complex and multifaceted influences.

Nevertheless, the weight of existing evidence suggests that discrimination does continue to affect the allocation of contemporary opportunities; and, further, given the often covert, indirect, and cumulative nature of these effects, our current estimates may in fact understate the degree to which discrimination contributes to the poor social and economic outcomes of minority groups. Although great progress has been made since the early 1960s, the problem of racial discrimination remains an important factor in shaping contemporary patterns of social and economic inequality.

Sources of data
Books:
  1. Marc Galanter, Competing Equalities : Law and the Backward Classes in India, Delhi, OUP, 1984
  2. Paul R Brass, The Politics of India since Independence, Cambridge, Cambridge University Press, 1990
  3. Professor Parmaji, Caste Reservations and Performance : Research Findings, Warangal, Mamata, 1985
  4. V A Pai Panandiker, The Politics of Backwardness: Reservation Policy in India, New Delhi, Konark, 1997
Dictionaries:
  1. Black’s Law Dictionary, (7th edn., West Group Publishers 2002)
  2. Oxford English Dictionary, (10th edn., Oxford University Press, New Delhi 1999)

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly