Introduction & Meaning Of Protective Discrimination

Oppression and suppression have a long history in India. Whether during the Puranic era, the royal age, or the British reign, discrimination against some communities has always existed. Long-time exploiters of these communities and influential non-discriminating members of society have muted their cries for help. Because of their extreme disadvantage, they were stripped of all financial power and forced to live in poverty for generations on end.

The authors of the Indian Constitution envisioned a world without discrimination based on race, color, caste, or gender, and one in which everyone is treated equally. Many people continue to harbor dreams of achieving this. The Constitution's authors thus used their judicial judgment to consider a positive action that might lead to the achievement of the intended goal. An excellent socioeconomic maneuver gained a new dimension thanks to the concept of protected discrimination.

A method of ensuring social fairness in society is the practice of protective discrimination. The most exploited and oppressed groups in Indian society are the scheduled castes, scheduled tribes, other underprivileged classes, and women; as a result, the Constitution tries to improve their lot in life by giving them some specific advantages.

In India's Constitution, "Protective Discrimination" is rightfully defined as the behavior in question. Many civilized countries, including industrialized countries like the USA, have adopted the concept of protective discrimination due to their sordid past of racial prejudice.


In India, these specific provisions for the oppressed and abused are offered as quotas or reservations in educational institutions, employment opportunities, and legislative privileges, and it requires the legislatures to enact special laws for their general advancement.

Indian Backward Groups Need To Be Protected From Discrimination

In Marri Chandra Sekhar Rao v. Dean Seth G.S. Medical College (1990), the Supreme Court ruled that equality had to be a reality that individuals could experience on a daily basis. It is impossible to treat people equally when they are unequal in status and opportunity.

This issue is made worse by the fact that caste-based discrimination is a major feature of Indian society, which targets particular communities. A long-standing social issue, the caste system has its roots in ancient times. The caste system is still in place and this is the sad irrefutable truth, even though the Constitution forbids discrimination against these groups. Without any input or a system for resolving disputes, lower

castes are forced to serve upper castes. This cruel and brutal situation persisted for generations before "we the people" came to understand the disease driving the legal system to establish laws, offer modifications, and improve the lives of these individuals in an effort to elevate them to the same pedestal that we all stand on.

Indian Laws And Rules From The Past That Provided Protection From Discrimination

Article 17:

• "Untouchability" is outlawed, and any instance of it being practiced is considered a crime
• Promote economic and educational objectives, according to Article 46.
• Preference in hiring for positions in the public sector is covered by Articles 16 and 335.
• Seats in the Lok Sabha and State Assemblies are subject to reservation under Articles 330 and 332.

Article 16 has been modified to reflect two constitutional amendments (4).

1. Scheduled Castes and
2. Scheduled

Tribes can now receive preference for promotions thanks to the Constitution's 77th Amendment, which went into force on January 1, 2019. As a result, by amending the Constitution, Parliament has nullified the

Supreme Court's ruling in Indira Sawhney that an appointment does not automatically translate into promotion. A change to Article 16(4)(B), which states that "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)," was also brought about by the 81st Constitutional Amendment.

The Constitution (One Hundred Third Amendment) Act of 2019 introduced Article 16(6), which reads as follows: "No Government Authority or Any Other Person or Authority shall prohibit the State from making any laws related to the reservations of economically weaker sections; The laws made for their reservation should not exceed ten percent."

Part IV of the Indian Constitution, the Directive Principles of State Policy, was written under the impact of the socioeconomic provisions of the Karachi Resolution. In order to defeat mass exploitation, Congress held that in addition to political freedom, there also needed to be genuine economic freedom for the millions of hungry people.

According to the Constitution's Article 15(3) and Article 15(4), the state is free to enact special legislation protecting women's rights and the rights of children, as well as measures aimed at assisting socially and economically disadvantaged groups. Reservations may be made in educational institutions by the state under Article 15(5).

Additionally, reservations for these economically and socially disadvantaged sectors are covered in Articles 15 and 16 in order to advance their cause.

The Anglo-Indian Community's rights are protected by Article 336 when it comes to hiring practices across a range of industries, including customs, postal services, and railroads.

Is Discrimination Against People Of Lower Social Strata Based On Reservations And Other Forms Of Protection A Permanent Right?

Who would deny that working for the government is both a luxury and a chance for any person from a low-income background to succeed in both their personal and professional lives? According to Article 335 of

our Constitution, it would appear that in light of this important factor, the requests of individuals belonging to the scheduled castes, among others, will be seen as being compatible with the upkeep of administrative effectiveness.

In all of India, the Supreme Court In "Anna Dravida Munnetra v. Union of India (2020), the court refused to accept a number of petitions requesting the implementation of a 50% reservation for "Other Backward

Classes (OBCs)" in state-funded seats in the all-India quota for UG and PG medical courses in TamilNadu, reasoning that "reservation is not a fundamental right." Reservation has not been deemed to be a fundamental right by the Apex Court at various points this year".

As a result, the decision to grant reservation in government positions, educational institutions, and numerous other organisations is up to the law-making bodies and is not a right that members of the socially and economically disadvantaged portions of society may consistently seek.

Concept Of A Creamy Layer

The phrase "creamy layer" in Indian politics describes some members of a lower socioeconomic class who have made significant advancements in their social, economic, and educational standing. They represent that backward class's most progressive individuals and are equally as progressive as any other members.

The phrase was first used in the Indra Sawhney case (1992), which discussed the allocation of certain groups to specific jobs.

The family income categorizes the community and sets the creamy layer apart from the rest. Only the OBC population is eligible for this classification, and it is applicable. The benefits of reservations are always available to those who belong to scheduled castes (SCs) and scheduled tribes (STs), regardless of their family's financial situation.

It's been debatable about this for a long time. Many others and those who do not receive such reservations agree that the ST-SC community should first be covered by the creamy layer policy before receiving any further benefits, such as reservations. They overlook the ongoing mental anguish and stereotype that

casteism, which is still pervasive in Indian society, has caused them to endure. All other reservations remained unaffected; this only applied to reservations in promotions. December 2019 saw the submission of a fresh appeal by the federal administration to the Supreme Court.

Important Case Laws Related To Protective Discrimination:

In Mohan Kumar Singhania v. Union of India (1991), "The Supreme Court explained that Article 16(4) is an enabling article that gives the state freedom to make any provision or reservation for any backward class of citizens that is not adequately represented in the state's service. The state government takes the total population of the backward class and their representation in state services, does the appropriate calculations, and then makes the reservation and provides the percentage of reservation for the posts, which must be carefully adhered to".

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 A. Peeriakaruppan, etc. v. State of Tamil Nadu (1970), "the Supreme Court stated that 'A caste has traditionally been considered a social group. If an entire caste or community is socially, economically, or educationally backward at any given period, that caste or group is considered a backward class. This is because they form a class, not because they are members of that caste or group".

In the case of Jagdish Negi v. State of U.P (1997), "it was stated that backwardness is not a one-time occurrence. It can't go on indefinitely, and the government has the right to examine the issue at any point".

Conclusion
Through a number of rules and clauses, the Indian Constitution seeks to level the playing field for all people by eradicating inequalities between various social groups and granting them all an equal chance at success. Positive discrimination is a subject of increasing debate in India. However, because it is primarily a social construct, democracy is not constrained by logic or ethics. If a sizable segment of the populace is left behind in the development race and is thus unable to take advantage of the equality of opportunity guaranteed to all Indian residents as a fundamental right, the nation cannot grow.

Long-debated issues include how to uphold the rights of the privileged group as well as historically oppressed, economically and socially disadvantaged people. India's history of tyranny and bloodshed is bleak because of its rigid caste system and hierarchical structure. Even though the nation and we Indians have been free and independent for 74 years and as we go towards the liberalization and globalization eras, the social structure and general outlook on life have not changed.

Different laws, applicable differently in various locations and situations, should exist in order to reflect the very essence of society. Infringing on the spirit of the right to equality may occur from applying the same laws to everyone equally, regardless of socioeconomic differences.

Therefore, it is strongly advised in our society to use protective discrimination as a constitutional principle to defend and preserve the rights of women, members of scheduled castes and tribes, and other underprivileged groups of people. Let's hope the decision-makers step up to the plate and make sure that any loopholes are closed so that these folks can be absorbed quickly into government services and positions.

Also Read:

• Non Discrimination And Protective Discrimination