PROTECTIVE DISCRIMINATION

PREVIEW

INTRODUCTION
MEANING AND BACKGROUND
CONSTITUTIONAL PROVISIONS
CRITICAL ANALYSIS
A VIEW POINT
CONCLUSION
 INTRODUCTION
The idea of equality and inequality, the theory that no two people can be
equal and the notion that equality of opportunity could combat the drawbacks
which many faced due to their social position have occupied the minds of
eminent philosophers such as Locke, Rousseau, Huxley and many others.
There was nothing ambiguous about the arbitrarily hierarchical and socially
and economically exploitative caste system that had guided India since
before the Independence. For, centuries, they had been victims of humiliation
and oppression and at the dawn of independence, the framing fathers had
taken the plight to ensure then with justice- social economic and political, as
set forth in the Preamble of the Constitution of India and thus inserted an
extraordinary phase for the upliftment of the masses of humanity from the
morass of subhuman social existence, abject poverty and economic
exploitation too.
Initially we all know that the genie of affirmative action was
installed in the Constitution for a temporary period of 10 years, but
fortunately or unfortunately it is on till date and flawed political
policies have made it more confirmed, threatening the
Constitutional goal of casteless society rather making it a caste
based society. Therefore, it has been tried to find out some
agreeable or considerable solutions for balancing the interest of
the persons who are actually socially, economically and
educationally backward without making classification on the basis
of caste, who claims reservations or special provisions by birth.
The Constitution of India is prefaced by a
resolve " to secure to all of its citizens
. EQUALITY of status and
opportunity---." Accordingly, it confers on
all citizens a fundamental right to be free
of discrimiation by the State on grounds of
race, religion and caste. In -specific contexts
the government is further forbidden to
discriminate on grounds of place of birth,
residence, descent,class, language and sex
''TheState shall promote with special care the
educational and economic interests of the
weaker section's of the people, and, in
particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation''
 MEANING AND BACKGROUND
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.
 IMPLICATIONS OF INDIAN RESERVATION

In 1990 higher education institutions, public sector units & Government Bodies, 22.5% of available seats were made reserved for
Scheduled Caste (SC) and Scheduled Tribe (ST) (15% for SCs, 7.5% for STs). This reservation percentage has been raised to
49.5%, by including an additional 27% reservation for OBCs in 2006. 5-10% of aggregate marks and 3-5years of age relaxation
and exemption from tuition fees is given to SC, ST & OBC candidates who wish to take admissions in various Government
institutions.
The Central government has given the 5% reservation to the physically disabled person who have 40% or more disabilities.
In 2010 Women get one third reservation in gram panchayat (village assembly - a form of local village government) and
municipal elections. There is a long-term plan to extend this reservation to parliament and legislative assemblies. For instance,
some law schools in India have a 30% reservation for females, women also enjoys the separate Higher education institutions
which are made only for women and no other is allowed for admission in those institutes.
The CBSE has introduced examination reforms using Continuous and Comprehensive Evaluation (CCE) in its affiliated schools
from the academic year 2009-2010. Under the new procedure, Children below class 10th will be evaluated under the 9 Grade
system. Student must get D or higher grade to get promoted in next class. The rules for compartment and improvement will be
same as previous year. No student will be declared fail even if he gets all E1 or below. He will get chances to improve. For class
10 exams, grades on final exam only be treated as done last year.
In mid-2012 25% reservation is provided to the reserved category children in the Government aided & Private schools under the
Right to education act which was passed earlier by the parliament.
In January 2016 Government has given 33 percent reservations to women in all paramilitary forces, including Central Industrial
Security Force (CISF) and Central Reserve Police Force (CRPF).
 YOU DECIDE

PLUS POINTS MINUS POINTS

It perpetuates the institution of caste, as people who want to be
eligible for the quota need to get a "community certificate" from
It allows disadvantaged communities to grow and spreads the government. Those who don't need quotas usually don't get
the reach of education more equally. any such certificates.
It deepens the chasm between communities. Some of the people
It reduces the inequalities between different communities. who get a raw deal from the quota system harbor illwill against
those communities that are beneficiaries of the quotas.
It produces a more "fair" competitiion by neutralizing the
Many of the beneficiaries of the quotas are people who are
historic advantages that the upper castes had.
already financially secure due to the quotas given to their
fathers & grandfathers. Some of the really disadvantaged people
are unable to compete with people from this "creamy layer".
 IMPORTANT PROVISIONS IN THE CONSTITUTION

Article 14 guaranteed equality to all: The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India. That was the fundamental guarantee.
Article 15(1) made that guarantee specific in one particular: The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place
of birth or any of them.
Article 15(2) guaranteed equal access for everyone to public facilities like wells,
restaurants etc.
Article 15(3) contained a proviso provided: Nothing in this article shall prevent the
State from making any special provision for women and children. Notice again: the
only categories for which special provisions were envisaged were women and
children. In particular, notice that no exceptions were envisaged on the basis of
castes.
 POSITIVE DISCRIMINATION
Now let us see some of the constitutional provisions which aimed at 'positive
discrimination' -:
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.
Articles 330 and 332: Reservation of seats in the Lok Sabha and State
Assemblies.
 WHAT DOES ARTICLE 16 SAY??
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated
against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an
office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or
Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class
of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation[in matters of promotion, with consequential seniority, to any
class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious
or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular
denomination.
 AMENDMENT TO ARTICLE 335
Article 335 in The Constitution Of India 1949
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance
of efficiency of administration, in the making of appointments to services and posts in connection with the affairs
of the Union or of a State

THE CONSTITUTION (EIGHTY SECOND AMENDMENT) ACT, 2000

BE it enacted by Parliament in the Fifty-first year of the Republic of India as follows :

1. Short title: This Act may be called the Constitution (Eighty-second Amendment) Act, 2000

2. Amendment of article 335: In Article 335 of the Constitution, the following proviso shall be inserted at the end,
namely :

"Provided that nothing in this article shall prevent in making of any provision in favour of the members of the
Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in
connection with the affairs of the Union or of a State".

article-16-of-indian-constitution-11-638

 Representation of OBCs is still low for the reason that reservation for them
started only in September, 1993. Moreover, those OBCs recruited before 1993
have not shown themselves as OBCs since the reservation was not available to
them before 1993, and they were recruited/ appointed as general candidates.
There is no reservation for OBCs in promotion.
Reservation to SCs in Direct Recruitment is available since 1947.
Whereas, reservation for STs in direct recruitment was introduced in 1950.
The provision of reservation in promotion for SCs/STs is available since 1955

Groups Number of Percentage

OBCs of OBCs

A 5357 6.9
B 13,897 7.3
C 3,46,433 15.3

(erstwhile) D 81,468 17.0

 As per information received from various Ministries/
Departments, the representation of SCs, STs and OBCs in
posts and services of the Central Government as on
1.1.2011 is as under

Group SCs STs OBCs

Number % Number % Number %

A 8922 11.5 3732 4.8 5357 6.9

B 28403 14.9 11357 6.0 13897 7.3

C 370557 16.4 174562 7.7 346433 15.3

(erstwhile) 110515 23.0 32791 6.8 81468 17.0

D
 CRTICALANALYSIS

Cent percent reservation not permissible

Application of Rotational Rule Supreme Court tells Modi
Extent of reservation govt to scrap reservations
from institutes of higher
Concept of creamy layer
education
Reservations for Minorities
Reservations for Women
Merit versus Social Justice
Inherent Contradictions
Persistence of Caste Prejudice
A Spectre of Two India's
THE PROBLEM

- Many benefits of reservation have been taken by lesser, better educated elites who are well off known as the creamy layer

- Though reservation is applicable to the poor and rich or literate and illiterate, benefits of reservation accrue for those who are already possessing advantages such as wealth and education

- Poor disadvantaged SC and ST as well as and OBCs remain on the fringes and mired in poverty and backwardness

- Communities excluded from reservation feel animosity for those who have access to it

- Caste polarisation is further deepened by political mobilisation

- Recent instances of caste mobilisation for and against reservation abound such as the Jat-Gujjar-Meena agitation in Rajasthan and the group led by Hardik Patel

- Current forms of reservation and zero sum approach have led to the deepening of caste divisions

THE SOLUTION

- Benefits should flow to the underprivileged, no denying this requirement

- Public officials of higher rank and high income professionals as well as their children should be barred from reservation (creamy layer concept )

-Reservation in promotion only between the reserved category

- With the SC ruling of 50 percent on reservation quota, further reservation is not possible. No change is recommended

- Creative ways to make sure that benefits are evenly distributed to disadvantaged sections of society : responsibility of politicians, intellectuals and society

- State to provide quality education

- Underprivileged children should be given more marks weightage during admissions as a competition between themselves only. No reservation beyond primary stage

- No reservations in the private sector recommended

The Haryana Legislative Assembly has
unanimously passed the Haryana Backward
Classes (Reservation in services and admission in
educational institutions) Bill, 2016. Key Provisions
The bill seeks to provide reservation in services
and admission in educational institutions to
persons belonging to backward classes including
Jats and five other castes. The backward classes
have been divided into three blocks as Block A,
Block B and Block C. Jats, Jat Sikhs, Ror, Bishnoi,
Tyagi and Mulla/Muslim Jat have been included in
the Block C. It provides to give 10 percent
reservation to these castes for class III and class IV
posts and 6% in class 1 and class 2 posts. These
castes will be given 10 percent reservation for
admission in educational institutions. State
Legislative Assembly also passedHaryana
Backward Classes Commission Bill, 2016for
institution of a permanent Backward Classes
Commission.
Bihar Government has formally approved 35 per
cent reservation for women in government jobs in
the state. Decision in this regard was taken by
state cabinet meeting chaired by Chief Minister
Nitish Kumar in Patna. This 35 per cent reservation
for women will be applicable to in all government
jobs including reserved and unreserved category.
Presently state is already providing 35 percent
reservation for women in recruitment as police
constables and sub-inspectors. There is also 50
percent reservation for women as primary school
teachers and in the Panchayati Raj system.

Read more at:

http://currentaffairs.gktoday.in/current-
affairs/reservation
 CONCLUSION

Give a man a fish; you have fed

him for today. Teach a man to
fish; and you have fed him for a
lifetime