"Protective Discrimination" A Boon Or Bane for Eternity?|Lexpeeps

Introduction:

Considering the history of racial and caste discrimination in the world, the two most prominent names pop in our minds, i.e., United States and India. Unfortunately, India leads ahead of the US in this particular issue. To abolish such discrimination, the government of India, since its independence has been putting efforts through protective discrimination for the welfare of the languishing units of society.

Since the inception of the Constitution of India, certain provisions have been primarily enshrined under Part III (Fundamental Rights) and Part IV (Fundamental Duties) for empowering the concept of protective discrimination to fill the societal voids.

Protective discrimination has been adopted as a tool for granting special privileges to the downtrodden and the underprivileged sections of society. These are the affirmative action programs, and also known as positive discrimination. The term “protective discrimination” implies that a certain right or privilege is provided to those who have been oppressed and discriminated against for ages. Discrimination against discrimination is based on the widely known quote “iron cuts iron”. There’s no ambiguity as history conveys that one type of discrimination is curative and protective in nature whereas the other type is negative and destructive. The society’s most susceptible section includes-

Scheduled Caste
Scheduled Tribe
Women
Children
Old age people
Transgender

Origin:

The first instance of appreciating the need for such discrimination in Indian history, in favor of the underprivileged, could be seen during the Nationalist Movement. Mahatma Gandhi, a devout Hindu and a staunch believer in the caste system was himself the first leader to recognize the significance of this subject and to invoke the sense of right and wrong of the higher castes to this age-old social malady of relegating whole communities and labeling them as “untouchables”. He renamed these untouchables as “Harijans” (people of God). He strived to provide this policy a religious sanction. He was well aware of the political motive of inaugurating this large body of people into the political mainstream to make the freedom movement more broad-based.

The Indian Constitution largely followed the pattern of the Government of India Act, 1935, and made provisions for positive discrimination in favor of the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted approximately 23% of the divided Indian population. Besides reservation in parliamentary seats for them, they were also given advantages through jobs in the public sector, admission in schools and colleges, various pecuniary benefits for their overall development, and so on. Besides assuring the fundamental right of equality of all citizens before the law, the Constitution of India 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 the SCs and STs”.

Statutory Provisions:

The following articles of the Constitution of India provide laws in favor of the concept of positive discrimination:

Art. 15(5): The aforementioned sub-section was enunciated by the 93rd Constitution Amendment Act, 2006. It provides that nothing in Art. 15 or in sub-clause (g) of Art. 19 shall prevent the State from making any special provision, through regulation, for the advancement of any socially and educationally backward classes of citizens or SC and ST. Such unique provisions relating to admission to an educational institution and are inclusive of non-public educational establishments, whether aided or not by using the state, other than the minority educational establishments referred to in clause (1) of Art. 30
Art. 30(1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Art. 16(4): The aforementioned article authorizes the State to make provisions for the reservation of posts in government jobs and training in favor of any backward class, which, in the opinion of the State , is not always adequately represented within the State’s services.
Art. 16(4-A): The said article was introduced through the 77th Amendment, enabling the State to make any reservation provision in matters of promotions for SC and ST, which, in the State’s opinion, are not competently represented within the State’s services.
Art. 330- Said article permits reservation of certain seats in the autonomous district of Assam for the SC and ST.
Art. 332- The aforesaid article provides the reservation of seats for the SC and ST in legislative assemblies of all the states except the scheduled tribes that are within the autonomous district of Assam.

Current Scenario:

The issue of reservation has been an all-time favorite issue in India. However, a PIL has been filed recently in the Hon’ble Supreme Court of India by an advocate who is also an MBBS doctor. The petitioner has posed the following questions before the apex court:

Are caste-based reservations in education for eternity in this country or is there a time beyond which they would be rolled back or at least to start rollback?
Isn’t there any other affirmative action than to provide reservations in education like giving the weaker sections special education, coaching, financial aid, etc. to enable them to compete in the open?
Shouldn’t we empower the weaker sections by making them more competitive rather than depowering them by eternal crutches of reservation?
Would eternal reservations in education not divide and fracture the society permanently, promote inequality, and ignite hatred, ill-will, and resentment not only against the reserved class but also against the system?
Being the protector of fundamental rights, is it not the bounden duty of the Supreme Court under Art. 14, to put a halt to the reserve discrimination being met to the unreserved class by the eternal reservations?

As of now, a division bench of Justice Nageshwara Rao and Justice Hemant Gupta on June 28th had adjourned the plea for a week, after a letter seeking adjournment was circulated by the petitioner in person.

Petitioner failed to acknowledge that the communities which have been treated as slaves in our history for ages can’t be revived in a snap. The damage done in centuries cannot be restored in a few decades. The objective of reservation seems nowhere near as instances of atrocities and societal exclusion of a person belonging to a lower caste in the society are not unfamiliar yet. A few from weaker sections might have grown financially strong with independence but people often, relying on half information, tend to hate the element of reservation, and fail to appreciate that our constitution provides reservation to those sections of society who are “socially” and “educationally” backward. The ground reality is itself illustrated by the petitioner’s second issue that the weaker sections still need affirmative actions for enabling them to compete naturally. Even after 74 years of independence and reservation provisions, there’s a long way ahead to achieve a non- discriminate nation for global development.

However, my conscience tends to partially agree with the petitioner here. Reservation in jobs, educational institutions, etc. cannot go till eternity. It will divide and fracture society if followed for an indefinite period. As excess of anything causes harm. Therefore, for eradicating both discrimination and reservation, all of us primarily need to end discrimination from our minds and help society to grow unitedly thereby leading to no requirement of reservation.

Conclusion:

Competition must be fair by all means and all the competitors must be treated equally, but only if they come from a similar social and educational background. A country must aim to progress within itself before competing in the world and that is exactly what our constitution aims to do. Coronavirus sees no caste and creed before attacking and has been haunting the whole world for the last one-n-half year. All it needs for its development are human beings, though ill. Similarly, we too need to unearth these fallacies as soon as possible for the overall development of our nation. Appropriate actions must be taken for a steady improvement. Lastly, protective discrimination is a boon, but a bane if followed till eternity.

The article has been written by Shikha Sagar, a third-year BA LLB student of Vivekananda Institute of Professional Studies, Delhi.

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