Protective discrimination and tribal welfare

March 5, 2023

This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3rd year law student.

INTRODUCTION

The makers of the Indian Constitution dreamt of a society where everyone is treated as equal and no one is exploited based on their colour, caste, sex or race. Indian society discriminates against some communities most prominently based on the institution called the caste system. The caste system is a deep-rooted social problem that dates back centuries ago. Even though the Constitution prohibits discrimination against these groups but, the legal position apart, the caste system is still the order of the day and this is the sad undeniable truth. Lower castes have to serve the upper castes without having any say and grievance redressal mechanism. A nation cannot flourish if a significant portion of its population falls behind in the development race and, as a result, is unable to benefit from the equality of opportunity granted to all Indian citizens as a fundamental right.

PROTECTIVE DISCRIMINATION

Discrimination means the act of differentiating between two people. It is granting of some advantage to a particular section or class of society over others. The weaker section was left in cold for years as nothing more than garbage in the society. To take one’s measure from the class or caste to which he or she belong amounts to discrimination. Protective discrimination means a privilege or some right in favour of those who had been discriminated and oppressed since ages. In our society woman had been subjected to discrimination and hardships they are not given an equal status as that of the man in the society. The need to discriminate positively in favour of the socially underprivileged was felt for the first time during the nationalist movement.

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”. The policy of reservation pursued by the state to bring about social transformation of the scheduled castes is also known as “Protective discrimination”.

CONSTITUTIONAL PROVISIONS

The on separating individuals or groups having certain features from the general category of candidates and conferring on them the benefit of special treatment. It is discrimination made in favour of the backward classes vis-à-vis the citizens in general and has been referred discrimination’ Discrimination’. Article 14 of the constitution of India states that “the state shall not deny to any person equality Before the laws within the territory of India”. So, according to this article, there will be no upper class or lower class society. There shall be equality among all the persons. Article 15(3) enables the State to confer special rights to women, and children. This provision Empowers the State to make special provisions and enactments in favor of women and children For their all-round upliftment in the society. Article 15(4) enables the State to make special provisions for the improvement of socially and Economically backward classes of citizens specifically the Scheduled Tribes and Scheduled Castes. This provision was added after the decision given by the court in case State of Madras v. Champakam Dorairajan, by the constitutional first amendment Act 1951. Article 16 (1) guarantees to all citizens equality of opportunity in matters relating to Employment in public offices, clause (3) to (6) of Article 16 contains an exception to the rule Of equality of opportunity incorporated in clauses (1) and (2). Clause (4) to Article 16 Expressly permits the State to make provisions concerning the employment of backward classes Of the citizens. Article 46 imposes a duty upon the State for the promotion of educational and economic Interests of the weaker section of the people, especially those belonging to Scheduled Tribe, Scheduled Castes, to protect them from the vicious cycle of all forms of exploitation and Injustice. Article 332- This article gives reservation of seats for the scheduled caste and the scheduled Tribes in legislative assemblies of all the states except the scheduled tribes that are within the Autonomous district of Assam.

In Marri Chandra Sekhar Rao v. Dean Seth G.S Medical College (1990) held that equality must be a living reality for the people. Those who are unequal in status and opportunity cannot be treated by identical standards. In India, these special provisions for the downtrodden and exploited are provided as reservations or quotas in educational institutions, jobs, and parliamentary privileges and it commands the legislatures to legislate special provisions for their overall advancement. 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 Constitution.’ 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 with dignity.

CONCLUSION

All people mustn’t be equal by their nature, attainment, and circumstances. The Changing needs of different classes of persons often require diverse treatment. Where the Essence of the right to equality is pervading throughout the constitution, it also speaks of special Treatment to a particular section. In India, there is a growing discussion about positive discrimination. A democracy, on the other Hand, is not restricted by logic or ethics because it is fundamentally a social creation. A nation Cannot flourish if a significant portion of its population falls behind in the development race And, as a result, is unable to benefit from the equality of opportunity granted to all Indian Citizens as a fundamental right. 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.

REFERENCE

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March 5, 2023