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DECLARATION
I, Neha Panchpal,hereby declare that, the project work entitled, Freedom of
Religion under Constitution of India submitted to H.N.L.U., Raipur is record of an
original work done by me under the able guidance if Mr. Azim Pathan, Faculty
Member, H.N.L.U., Raipur.
Neha Panchpal
Batch XIII
22/10/2013
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Acknowledgements
Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words is
beyond the domain of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Faculty-in-charge Mr.
Azim Pathan, for his kind gesture in allotting me such a wonderful and elucidating research
topic.
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TABLE OF CONTENTS
1. Declaration2
2. Acknowledgements...3
3. Scope, Objective and Research Methodology...5
4. Introduction..6
5. Preamble...8
6. Constitutional Provisions.. 10
7. History.11
8. Amendments....12
9. Nature and objective of policy in India..17
10.Current Situation18
11.Proposal...20
12.Conclusion...22
13.Bibliography23
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INTRODUCTION
The Indian society is characterized by a high degree of structural inequality based on the tenets
of the caste system. The caste system is based on the principles of purity and pollution, which
involve the division of people into castes with unequal and hierarchal assignment of economic
and civil rights ascribed by birth. Social exclusion among the castes is ensured through the
practices of endogamy and social separation. Exclusion is, thus, internal to the system, and a
necessary outcome of its basic features.
Though, every caste has suffered from the unequal and hierarchal assignment of rights to some
extent, but the erstwhile untouchable* castes located at the bottom of the caste hierarchy suffered
the most as they were historically denied the rights to property, business (except to occupations
considered as impure and polluting), education, civil, cultural, and religious rights. Besides, the
Scheduled Castes (SCs) also suffered from the deleterious effects of residential segregation and
social isolation.
The SCs are one of the most oppressed and backward communities in the Indian society, and
suffer the stigma of untouchability and discriminatory forms of social exclusion even in the
contemporary times. They were referred to as Broken Men and Protestant Hindus by
Ambedkar, and Harijans or children of God by Gandhi. The Scheduled Tribes (STs) on the
other hand, comprise of social groups, the nature of whose marginalization and deprivation is
primarily due to geographical and spatial isolation.
Besides, there are other erstwhile untouchables who have converted to other religions, primarily
to Sikhism, Buddhism, and Christianity. They account for about 4 percent of the population and
suffer from caste-based discrimination in some spheres, if not all. Two of them, the Sikhs and the
Buddhists, in fact, are already a part of the positive discrimination (reservation) policy of the
Government. The petitions of the Dalit Christians are lying with the Government and the Courts
for the consideration of inclusion into the list of those eligible under the reservation policy in the
public domain.
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The Government in recognition to the peripheral status of the marginalized social communities
has consistently promulgated various legislations and statutes, which are influenced by two main
considerations, namely:
a. to overcome the multiple deprivations of the marginalized social groups inherited from
exclusion in the past, and to the extent possible bring them at par with the others; and
b. to provide protection against exclusion and discrimination in the present by encouraging their
effective participation in the general economic, social and political processes of the country.
Towards these ends, the Government had utilized two-fold strategies, which include:
The extension of the reservation policy in India to the marginalized social groups is primarily
drawn from such considerations and is only applicable to the public domain. As such, the vast
private sector, which comprises of a sizable section of the marginalized social groups, remains
outside the purview of the reservation policy.1
PREAMBLE
Every Constitution has philosophy of its own. The Preamble of our Constitution proclaims the
resolution of PEOPLE OF INDIA to constitute India into a SOVEREIGN, SOCIALIST,
SECULAR AND DEMOCRATIC REPUBLIC and to secure to all its citizens:
FRATERNITY assuring the dignity of the individual and the unity and integrity
of the nation.
1 Reservation Policy in India - Dimensions and IssuesSukhadeo Thorat and Chittaranjan Senapati
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The ward 'social justice' in the Preamble implies recognition of greater good to a larger number
without deprivation of legal rights of anybody.
RIGHT TO EQUALITY-Article 14
The Article 14 of the Constitution is one of the fundamental rights of the Constitution of
India. Let us now know about this Article.
The state shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India"
What do the two phrases in this Article namely equality before the law and equal protection
of law mean? On the face of it the two phrases may seem to be identical, but in fact, they mean
different things. While Equality before the law is negative concept; equal protection of laws
is a positive one. The former declares that everyone is equal before law, that no one can claim
privileges and that all classes are equally subject to the ordinary law of the land. Equal
protection of Law, on the other hand means, that among equals, the law should be equal and
equally administered. That like should be treated as like. Or in other words, persons differently
circumstanced need not be treated in the same manner. For example Equal protection of Law
does not mean that every persons shall be taxed equally, but that persons under the same
category should be taxed by the same standard. The guarantee of equal protection thus is a
guarantee of equal treatment of persons in equal circumstances permitting differentiation in
different circumstances. If there were a reasonable basis for classification, the legislature would
be entitled to make different treatment. Thus, the legislature may (i) exempt certain classes of
property from taxation at all, such as charities, libraries etc; (ii) impose different specific taxes
upon different trades and profession.
immunity is necessary for the protection of women in view of their existing position in India
Society.
CONSTITUTIONAL PROVISIONS
The framer of the constitution of India was Ambedkar and hence made certain arrangements for
the backward classes to allow them to enjoy a humane lifestyle and for their upliftment. The
reservations for the backward classes are of three broad categories: political, educational and
employment. For the first, the Constitution provides for reservation of seats in proportion to
their numbers for the SCs and the STs in the Lok Sabha (The Lower House) in its Article 330,
and in the Vidhan Sabha (The Upper House) in Article 332. These provisions do not exist for the
OBCs, which indicate that the principal categories for the affirmative action are the SCs and STs
according to the Constitution.
For the second, an implication exists in the constitutional provision - Article 15(4), which allows
the state to make any special provision for the advancement of any socially and educationally
backward classes of citizens or for the SCs and STs.
For the third, the constitutional provisions as modified and simplified from time to time are the
Article 16(4), Article 16(4A), Article 16(4B), Article 335, and Article 320(4). These articles
provide explicitly for reservation in educational institutions for the backward classes and the
2
authority of the state to make any required changes with time, as required.
HISTORY
India was a country with highly rigid caste-based hierarchal structure, with ascending order of
privileges and descending order of disabilities, which operated for about 3000 years. There was
an overwhelming majority in the nation that was still backward socially, economically,
educationally, and politically. These victims of entrenched backwardness comprise the present
scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even though,
these classes are generically the "Backward Classes, the nature and magnitude of their
backwardness are not the same. After achieving independence from the British in the late 1940s,
it became a democratic and egalitarian nation. It was imperative at that point to establish a code
for the political, economic, and social structure. The Constitution, established in 1950, strove to
do the same.
The STs were the tribes that had not confirmed to Hinduism in the historical perspective and
lived animistic lifestyles. SCs were the lower castes in the caste-hierarchy of the Hindu culture.
The Constitution directs in its Article 46 that the state shall promote with special care the
educational and economic interests of the weaker sections of the people, in particular, of the SCs
and STs, and shall protect them from social injustice and all forms of exploitation. Central to
this directive, and other related provisions is reservation, which is a package of constitutional
provisions and their intended follow-up programs for the social advancement of the weaker
sections. 3
In the Indian context, reservations were introduced during the last decades of the 19th century at
a time when the subcontinent could be broadly divided to two main forms of governance
British India and the 600 princely states. Some of these states were progressive and eager to
modernize through the promotion of education and industry and by maintaining unity among
their own people. Mysore in south India and Baroda and Kolhapur in western India took
considerable interest in awakening and advancement of the minorities and deprived sections
of the society. It should not surprise us then that the very first records of implementing
reservations policies are from these princely states.
When English was introduced as the official language, the upper and monetarily well off classes
decided to go into law or civil service. The untouchables, or the repressed classes had joined the
presidency armies and fought battles under the command of British officers. They had
contributed a great deal towards the creation of the British Empire. The untouchables were
asking for concessions and facilities for their upliftment and had not organized themselves as a
political force. It was with the arrival of Ambedkar that they acquired a leader of stature and r
that they acquired a leader of stature and education who could make a political difference.
AMENDEMENTS
Indian parliament Indian Judiciary has pronounced some Judgments
upholding reservations and some judgments for fine through constitutional
amendments. Some judgments of Indian judiciary has been flouted by state
and central Governments. Given below are the major judgments given by
Indian courts and its implementation tuning its implementations. Lot of
judgments regarding reservations have been modified subsequently by status: 4
4 See Arts 12, 14, 15, 16, 19, 335 of the Constitution of India.
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Thus, the Indian Governments approach towards these social groups has been primarily shaped
by the provisions in the Constitution, which guarantee equality before the law, and empowers the
State to make special provisions for the promotion of the educational, social, political and
economic interests of the SCs/STs, and to further, protect them from any form of discrimination
and exclusion.
The Government has used a two-fold strategy for the empowerment of the SC/STs, which
includes firstly, the provision of legal safeguards against discrimination and secondly, pro-active
measures in the form of the reservation policy for the public sector and state-supported sectors.
Reservations for the SC/STs in the Government services, educational institutions, and political
bodies like the Central and the state legislatures also fall under pro-active measures. These
measures have been incorporated to ensure the proportional participation of the SC/STs in the
public domain democratic decision-making bodies. It is equally important to understand that the
reservation policy is confined to the State-run and supported sectors. The private sector, wherein,
more than 90 percent of the SC/ST workers are engaged is excluded and therefore, remains
outside the purview of the reservation policy and open to possible discrimination.
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The policy of privatisation has further reduced the scope of employment available in the public
domain, since the public sector is in itself being disinvested. Though, such policy interventions
have general outcomes for the entire pop Though, such policy interventions have general
outcomes for the entire population; the populations among the marginalized social groups
remains the most affected. A significant fact is that according to the Industrial Act, 1984, 18
sectors were reserved as public sector enterprises. Over the years and under the garb of
liberalization, many among these have been disinvested and presently, only half a dozen remain
in the public sector. This has obvious implications for the employment opportunities available to
the Dalits and the tribals. 7
Current Situation
As of now, the total reservation quota stands at 45% in many states of India and this includes the
SCs, STs, and the OBCs. The trend seems to have shifted to reverse discrimination rather than
mere affirmative action. Some backward class elites have gained political and/or economic
power based on this reservation. However, a majority of the backward classes is not living any
differently than before. Their subsistence is meager and rural lifestyles do not provide them with
any of the benefits. Thus, a distinct economic class system exists within the backward classes.
Since economic status is not a test used, undeserving people gain the advantages and the
deserving ones are still without a significant change in their situations.
This sorry state of affairs is a result of political factors and the social policies existing in a
society in which, the old caste prejudices and discriminations. Those who are loud in their
criticism of reservations invariably belong to the dominant groups, who have been enjoying the
benefits of, if not a monopoly over, education, wealth, land, and public services in India. On the
other hand, the worst victims of the condemnation, persecution services in India. On the other
hand, the worst victims of the condemnation, persecution and exploitation of contemporary
society have been the untouchables, unseeables , unapproachable , and women. As Das says
in his article, There is a difference between a birds point of view and the worms point of
view.8
7 Ibid 1, p. 7
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The Poona Pact of 1936 gave more seats to the backward classes but transferred the right to elect
their own representatives. This has caused a political pressure because the people voted out of
these constituencies were unwaveringly faithful to the parties and the leaders who adopted them
as candidates and funded their elections. This had far reaching effects and obstructed the
progress of the backward classes in other fields too. The independent constitution of India gave
reservation rights to all the minorities including backward classes in 1950, and rectified this.
Reservation quotas, created with a view to giving a share to the members of the society who had
been denied opportunities in the past, antagonized those sections of society, which were enjoying
the monopoly of power.
The Mandal Commission Report of 1991 was in favor of reservations in higher education and
government services for the other backward classes of India. Angry students belonging to the
Hindu upper castes, and even the Supreme Court bar association challenged and opposed the
implementation of the recommendations of this commission. Even though the rights of SCs and
STs had nothing to do with the subject of OBCs in the Mandal Report, certain items affecting
them were included as issues in a writ petition filed in the Supreme Court. In spite of all
oppositions to the Mandal, reservations in favor of OBCs were upheld to the extent of 27 per
cent. Thus, the reservations offered to the SCs and STs were extended to OBCs at a national
level in 1993. It is interesting to note at this point that Christians, Moslems, other religious
minorities and women are still not given a specific reservation quota on a national level, even
though a lot of states offer incentives to these people. The current slogan in India seems to be
abolish reservation because merit and efficiency are in danger.
Proposal
In my opinion, this current slogan comes very close to the truth. There are multiple reasons in
saying so. For one thing, the current policy fails to achieve its purpose of giving equal
opportunity to everyone, because of lack of infrastructure in the rural areas of the country, where
the proportion of backward classes is significant. Secondly, it fails to establish a national
standard, which causes disequilibrium in the status of the states.
Thirdly, in real terms, there is no abolishment of caste system. Instead, the disparity increases
because of antagonistic attitudes on both sides. The members of lower classes still feel that they
do not have sufficient representation and the members of upper classes feel that in spite of their
merits, they do not have the same opportunities. Last, but not the least, the other minorities are
demanding reserved representation too, which would ultimately lead to a situation where the
seats left for the majority would not be proportional with their population. This therefore,
becomes a cyclical issue, rather than an equal opportunity issue.
Another problem that arises from the equal opportunity reservation policy is that the merits of
the backward classes are never truly recognized. This compromises with the efficiency of the
country. The government of India provides tremendous funding for educational institutions.
When people who do not utilize them fully use these resources, it leads to a waste. In addition,
people on reservation quotas do not get equal treatment in the society once they get qualified
because of the stigma associated with reservation.
Reserved seats in the Legislature and some educational institutions for women, also leads to a
similar problem of unequal treatment in the end. Thus, the whole purpose of providing equal
opportunity gets defeated. The caste system and discrimination have persisted in spite of the
reservation quotas. Reverse discrimination is widespread and everyone wants to take total
disadvantage of the existing system. This leads to corruption, inefficiency, and equal treatment
to unequal. This equity issue is the base of many current problems in the Indian society, polity,
and economy today.
Aditya Nigam says in his paper that if diversity is granted by the state on a platter, it is a fatal
error. It is pertinent to propose, at this point, that abolishment of the reservation quota and a
P a g e | 21
better system of affirmative action would be beneficial to the whole nation. For one thing,
further policies or entreaties for any kind of reservation need to be discarded and discounted.
Secondly, there is a need for a slow but steady removal of the reservation quotas. Thirdly,
development of more and better infrastructure in the rural areas to remove disparities there is
necessary. I believe that education and knowledge in a modern capitalistic society would lead to
removal of some, if not all discrepancy in treatment of people based on caste, culture, religion or
race. Evidently, the reservation policies in the last 52 years have failed to do so. It is time to try
a new approach.
There any many social hindrances to our proposal too. The pseudo-caste system that has
developed because of the reservation benefits to the lower castes and tribes has resulted in a
status quo that suits everybody. It is no longer a question of disadvantaged backward classes
but a matter of perspective. As Aditya Nigam points out in his paper on Dalit (backward classes)
Politics, land ownership issue and rights to bear arms are the major causes of the separation in
classes among the Dalits. The Dalit bourgeoisie are the ones that gain more advantage than
necessary and are not socially backward in any way.
The others who genuinely require these benefits are too far removed from the society and the
political arena to be able to gain any significant advantages.
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CONCLUSION
After the UN Conference against Racism, held in August-September 2001 known as the Durban
Conference, there is a new movement in India for the establishment of a modern society, which
gets rid of the shackles tying down the lower castes. There is a demand that reservation should
be extended to the private sector along with the public sectors, for both employment and
educational purposes. This, a recent development, is creating a furor among politicians and the
people of higher classes. The new global order has emerging challenges and creative responses
are critical to its success. The question that remains is that will the removal of reservation policy
bring back the old caste system, which was grossly unfair and inhuman to the lower classes.
In my opinion, this is unlikely. India began as a closed socialistic nation. After 1991, it has
turned towards capitalism and has opened its doors to globalization. With the higher levels of
education, higher levels of income, higher levels of growth, the economy is likely to stabilize
very fast. With higher pecuniary incentives, people are likely to forget the basic caste
differences. As it stands, people living in the urban areas have become psychologically blind to
these differences, at least on a social level. The cultural factor prevents inter-caste marriages, but
with time and modernization, this is likely to pass.
India should look towards the USA, where there is an affirmative action program for the
minorities and especially for the African-Americans, who were treated as inhumanly in the past,
as the lower castes in India. There is no reservation policy per se. There are sociological
problems even in the most developed nation in the world. In conclusion, all I would like to say
is that reservation policy and its persistence is likely to increase the caste-gap rather than help
decrease it. Thus, serious there is a need for serious reconsideration for the reservation policy in
India, especially when it comes to educational institutions
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BIBLIOGRAPHY
Rao, Shiva B., (eds.), The Framing of Indias Constitution, Volume IV, 1968, p. 45.
Louis, Prakash, Affirmative Action in Private Sector, Economic and Political Weekly, August 14, 2004, p.
3691.
Chalam, K.S. Caste Reservation and Equality of Opportunity in Education Economic and
Political Weekly, Vol. 25, No. 41, October 13, 1990.
Das, Bhagwan Moments in a History of Reservations Economic and Political Weekly, Vol. 35,
No.43 and 44, October 28, 2000
10. Virginius Protective Discrimination : Why Scheduled Tribes Lay Behind Scheduled Castes
Economic and Political Weekly, Vol.36, No.29, July 21, 2001.
WEBLIOGRAPHY
www.savebrandindia.com
www.google.com