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ASSIGNMENT
LAW AND SOCIAL CHANGE
THE DOCTRINE OF PROTECTIVE DISCRIMINATION
WHICH LEADS TRANSFORMATION OF SOCITEY

SUBMITTED TO SUBMITTED BY
PREETHA U. SRUTHI T R
LLM 1st SEMESTER
GOVT LAW COLLEGE THRISSUR
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INDEX
Contents Page number

 Introduction 3
 The Doctrine of Protective discrimination 4
 The concept of Protective discrimination 5
 Nature of Protective discrimination 6
 Object of Protective discrimination 8
 Historical Development 9
 Caste System in India 11
 Untouchability during British period 12
 Development of Reservation Policy 13
 Need of Protective Discrimination in
-Contemporary India 15
 Protective Discrimination under Constitution
-of India 16

 Problems of identification in backward classes 21

 Identification of non-creamy layer in OBC’s 22
 Political Safeguards 22
 Constitutional 73rd and 74th amendments: to
Empower SC/STs, OBCs and Women 22
 National Commission for SC/STs 23
 Conclusion 24
 Bibliography 25
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INTRODUCTION
We live in a society which constantly undergone transformations.
Changes over time are essential for social progress. Changes in
society sometimes result in new laws, and sometimes laws change
society.
Indian society has transformed over the period of time from a society
governed by Smrithi, Sruti, Dharma and other customary law, to
western conceptions of law and authority during the colonial period.
Further with the rights-based Constitution and progressive law-
making which includes the codification of religious laws and
affirmative action during the post-colonial period, the Indian society
has undergone transition.
Our society has always been full of inequalities. It was a caste ridden;
stratified hierarchical society and a particular segment of the society
had been denied the bare human rights. Equality is a basic feature of
the constitution of India and any treatment of equals unequally or
unequal as equals will be violation of basic structure of the
constitution of India.
This assignment deals with the doctrine of protective discrimination,
its nature, object, scope and also seeking how this protective
discrimination brings transformations in the society.
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DOCTRINE OF PROTECTIVE DISCRIMINATION

Protective discrimination is one of the important methods through

which Constitutional goals like social and economic justice can be
secured to the Women, Scheduled Castes and Scheduled Tribes.
Protective discrimination means preference given in admission to
public educational institutions and in public employment to the
weaker sections of the society including the Women, Scheduled
Castes and Scheduled Tribes.
Protective discrimination means a privilege or some right in favour of
those who had been discriminated and oppressed since ages. It is a
well-known quote that ―IRON CUTS IRON‖, hence discrimination
counters discrimination. It is evident from the history that one sort of
discrimination is destructive while the other one is protective and
curative in nature.
As India is having diversity in terms of religion, castes, belief and
communities with different levels of social and educational
advancement, which made it difficult for the State to adopt uniform
policy to all sections of the society. Therefore, the founding father of
the Constitution of India, Dr.Ambedkar, in order to provide social
Justice to the Women, Scheduled Castes and Scheduled Tribes has
incorporated many provisions in the Indian Constitution like, special
provisions for Women, special protection to Scheduled Caste and
Scheduled Tribes, special representation in legislatures, public
services and reservation of seats in educational institutions. This had
been done for increasing the educational opportunities and
representation in public services for the Women, Scheduled Castes
and Scheduled Tribes to provide equal opportunity as guaranteed by
the Constitution.
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THE CONCEPT OF PROTECTIVE DISCRIMINATION

The concept of protective discrimination which was adopted under the

Indian Constitution under article 15 (3), 15 (4) and 16 (4) is not a new
concept. This concept was already enunciated in the various
Constitutions of the world like, USA, UK and Canada. The
underlying idea is one and the same to protect the poor and backward
in order to uplift those communities from socio economic and
educational problems. But it was adopted in different form according
to their geographical isolation, development, class system, whereas in
the caste ridden society like India we have adopted provisions for the
protection of weaker sections that are socially and educationally
backward.
In general, ―Protective Discrimination‖ means bringing weaker
section of society into the main stream at par with forward class
people. The term ―Protective Discrimination‖ is known under various
nomenclature as ―Positive discrimination‖, ―Progressive
discrimination‖, ―Positive affirmation‖ or even as ―Reverse
Discrimination‖.1 The term ―Protective Discrimination‖ was coined
by C.H. Alexandrowicz to indicate the measures of protection
including reservation of seats in colleges and posts in the government
services sanctioned by the Constitution.2
According to Dr. Ambedkar, ―Protective Discrimination‖ is special
preferential treatment or special help. It is very necessary to bring
equality among inequals. Special provisions are made for the
upliftment of Women, Scheduled Castes and Scheduled Tribes, who
are in no position to compete with the more advanced sections of the
society. For the purpose of competing with the forward classes, the
protective discrimination is required.3
The Constitution of India provides to all the citizens, social, economic
and political justice and equality of status and of opportunity. The
code of equality under the Constitution of India is to be found in

1
Shankar L.Gaikwad ―protective discrimination Policy & Social change‖. Rawat publications, New Delhi,
P.1999.P.8
2
Ibid p.7
3
Constituent Assembly Debate Vol.7,1948-49.P.695
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Articles 14,15,16,17,18 and 29 (2).4 Special measures of reservation

for scheduled castes, scheduled tribes, socially and educationally
backward classes and other backward classes are major public policy
developed by the Indian society. One of the efforts of the State to
bring transformation in the lives of the suppressed, downtrodden and
vulnerable class of the Indian society is Protective discrimination.5

The concept of protective discrimination has not been a new one. In

fact, its roots could be traced back to our ancient past when the
society was divided on caste lines wherein each caste’s duties and
functions were predetermined or specific and transgression of duties
and functions, by and large, was not accepted and permitted. The
whole set-up had societal approval. The ultimate fallout of this
practice was that a particular community, which has now been
classified in the Ninth Schedule of our Constitution and is generally
referred to as the Scheduled Castes, was deliberately deprived of
many of the essential services which, in today’s context, are thought
to be quite essential for the upliftment of an individual.6

NATURE OF PROTECTIVE DISCRIMINATION.

The protective discrimination is meant to overcome the caste

discrimination and the persistent inequality in Indian society. The
benefits are extended to groups but the individual gets the benefits
because of his membership of that group. On the face of it, the policy
appears to be a discriminatory, whether the action is discriminatory or
not, depends on and varies in accordance with the social values used
as a basic in asserting judgments. Since India has accepted the
democratic values of equality and non-discrimination, the above
policy seems to be contradictory. As stated earlier, under the
circumstances as are prevailing in Indian society the protective
4
The idea of equality expressed in the preamble is stipulated here. This provision has enabled the state to
reserve seats for SCs and STs in educational institutions including engineering and medical colleges.
5
Protective Discrimination is a contentious issue that is in vogue from 1951, with Champakam Dorairajan case
and successive amendments to Article 15 and 16.
6
A.K. Lal, Protective Discrimination: Ideology and praxis, concept publication company, New Delhi, 2002,
p.73
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discrimination policy is quite compatible and also complementary

with the demand of equality.
Protective discrimination is a mechanism through which social justice
has to be ensured which is an integral part of the Preamble of the
Indian Constitution. This social justice therefore means ―justice which
is not confined to a fortunate few but takes within its sweep large
masses of disadvantaged and underprivileged segments of the society,
justice which not only penetrates and destroys the inequalities of race,
sex, power, position or wealth but it is heavily weighted in the favour
of the weaker sections of humanity, justice which brings about
equitable distribution of social, material and political resources of the
community, justice in which the law must be for the people that Rule
of Law becomes meaningful and social justice a reality for them‖. In
brief the provision relating to reservations can primarily be divided in
two parts- first, the reservation provisions mentioned in part third of
the Constitution, i.e., „Fundamental rights‟, and secondly, other
provisions, i.e. outside the part third of Constitution. In other words,
Art. 15(3), 15(4), 15(5), 16(4), 16(4A) and 16(4B) are part of Part
third of the Constitution which deals with fundamental rights. On the
other hand, Art. 243-D, 243-T and 330 to 334 are other Constitutional
provisions dealing with reservation of seats in representative bodies.
These provisions do not a form a part of Fundamental rights. The
provisions not forming a part of the Fundamental rights, there is no
dispute about its nature. Nevertheless, in respect of Art. 15(3), 15(4),
and 16(4), there are some contradictory judicial views about their
nature. The central justification of reservations in public service or
university admission is that they benefit the traditionally
underprivileged and correct the immemorial injustices done to them
since centuries.
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OBJECT OF PROTECTIVE DISCRIMINATION

The protective discrimination is a policy in which preferential or

special treatment given to and positive discrimination made in favour
of the Scheduled Castes and Scheduled Tribes. However, some State
governments have specified other Backward Classes (OBCs) and
denotified, nomadic and semi-nomadic communities also for some
special benefits. These communities are eligible to get educational
facilities, reservation in government jobs etc.7

The main objective of protective discrimination were to provide a

chance to the reserved categories for their economic and social
development so as to be compensated for the historical disability to
which they had been subjected because of the rigidities of the caste
hierarchy and prevailing power equations of Hindu society. The direct
outcome of this policy was supposed to be a more equitable
distribution of economic resources and a worthwhile sharing of power
at different levels in the running of the state affairs. The outcome of
this policy was supposed to be breakdown of the caste hierarchies,
removal of social stigma attached to the weaker sections and creation
of pressure group in the administration to safeguard the rights and
interest of these sections of Indian society.

The policy of protective discrimination is being criticized by both the

supporters and critics. The supporters are unhappy because it has not
giving the desired results on the other hand the critics complain that in
matters of employment, promotion, admissions, reservation have been
stretched too far at the cost of merit and equity giving rise to
frustration and alienation among the unreserved category. In the
modern times after initiation of new economic policy in 1991 which is
known as liberalization privatization and globalization, the jobs of
government departments have decreased sharply. Consequently the
reservation policy has practically become redundant therefore there is
demand for opponents to introduce this policy in the services of the
private sector. The private sectors are opposing it on the ground of
compromisation of efficiency.
7
Shankar L. Gaikwad. Protective Discrimination Policy and Social Change, Rawat Publications, Jaipur and
New Delhi, 1999, p. 8.
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The weaker section of society in India constitutes a substantial part of

our heritage. Since immemorial they had not been provided with
equal opportunities of performance at various levels due to which
their credential is at the verge of collapse. The need of the weaker
section in the society is in question in weaving the social threads.
Providing reservation as a bye-pass for the weaker sections of the
society. It will be helpful for overall development of these people, as
they are being made the part and parcel of the various opportunities
provided to all sections of the society. This, in turn results in overall
development of society as a whole. Exposure of the weaker sections
of society to the main stream increases the competitive instinct
amongst various classes at equal footing and this will finally result for
the betterment of society.

HISTORICAL DEVELOPMENT

The subject of reservation is vast one. Even the Historical

developments of reservations policies and its implementations in
India, would not be possible to be covered in this assignment. This
work, therefore, provides a brief of the points which are more
significant from the historical and legal point of view concerning the
development of reservation policy in India. The central justification of
reservation in public service or university admission is that they
benefit the traditionally underprivileged and correct the immemorial
injustices of centuries.
Traditional Hindu society in India is a typical and unique example of
a highly rigid and stratified hierarchy of castes and sub-castes. The
segmental division (castes and sub-castes) is based not only on
unequal status ascribed through birth but it also imposed some social,
religious, economic and legal disabilities on certain caste group,
especially castes of the lower strata in general and untouchables in
particular.8 The untouchables who are at the bottom of the social

8
Bhagwan Das. ―Moments in a History of Reservations‖, EPW, October 2000, p. 3831
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hierarchy have obliviously been socially deprived and exploited by

caste Hindus since time immemorial.
The studies9 in the field show that the two ends of the caste
hierarchy, the Brahmins at the top and the untouchables at the bottom,
had been rigidly fixed. The position of the castes in the middle rung
has varied from region to region depending upon their progress in the
field of economic development, education, numerical strength and
acquisition of political power, etc. Regarding the position of
Scheduled Castes10 in society it is pointed out that; Mythologically,
they are born impure, culturally they suffer from social disabilities,
occupationally they are born link with impure occupation, and above
all they are exclusively dependent for their survival on their high
castes of the respective villages who have tradition bound attitudes,
reflected in the nomenclature, castes, etc.11
This gives the comprehensive idea about the place of Scheduled
Castes in the traditional Indian society. It may be submitted that there
is no radical change in respect of their position in contemporary
Indian society. The SCs all over India, by and large, are similar in
terms of socio-economic inequality and social disabilities from which
they suffer. Their overall position in every sphere of life in the Indian
society is at the bottom.

9
M.N. Srinivas. ―The Caste System in India‖ in Andre Beteille (ed.) Social Inequality, Penguin Books, 1969, p.
260
10
Within the ordinary meaning of the caste there is no caste as Scheduled Caste. The term was coined by the
GOI Act, 1935, which was adopted in the Constitution. The term is an official adoption in which a group of
castes, heterogeneous in nature but suffering from the social disabilities and stigma of untouchability, have been
included for providing the special privileges. The stigma of untouchbility is the declared criterion. In the
Constitution of India, the SCs are defined as follows: ―Scheduled Caste means such castes, races or parts or of
groups within such castes, races or tribes as are deemed Art.341 to be Scheduled Castes for the purpose of the
Constitution.‖ (The Constitution of India, GOI, Delhi, 1980, p. 250).
11
L.P. Vidyarthi and N. Mishra, Harijan Today: Sociological, Economic, Political, Religious and Cultural
Analysis, Classical Publication, Delhi, 1977, pp. vii-vii.
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CASTE SYSTEM IN INDIA

History reveals that in the social stratification of the traditional Hindu

society, Sudra stood at the bottom of the ladder and was meted out
the most inhuman treatment of untouchability. As observed, Dalits are
kept at the bottom of the social ladder, as ―outcastes” and
―untouchables” outside the four-tier structure.12

Hindu society is divided into four Varna, or classes a convention

which had its origins in the Rigveda, the first of the most important
set of hymns in Hindu scripture which dated back to 1500-1000 B.C.
At the top of the hierarchy are the Brahmins, or priests, followed by
the Kshatriyas, or warriors. The Vasyas, the framers and artisans,
constitute the third class. Finally the Untouchables fall completely
outside of this system. It is for this reason the untouchables have also
been termed Avarna (―no class‖).13
Jati or caste is the second factor specifying rank in the Hindu social
hierarchy. Jatis are roughly determined by occupation. Often region
specified, they are more precise than the sweeping Varna system
which is common across India and can be divided further into castes
and sub-castes. This is also the case among untouchables. Andre
Beteille defines caste as ―a small and named group persons
characterized by endogamy, hereditary membership, and specific style
of life which sometimes includes the pursuit by tradition of a
particular occupation and it usually associated with a more or less
distinct ritual status in hierarchical system.14

12
Arun Kumar. Dalit and Economic Reforms, Rawat Publication, Jaipur, p. 126.
13
C.J. Fuller. The Camphor Flame: Popular Hinduism and Society in India, Princeton University Press,
Princeton, 1992, p. 12.
14
Andre Beteille. Caste, Class and Power: Changing Patterns of Stratification in a Tanjore Village, Oxford
University Press, Delhi, 1996, p. 46
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UNTOUCHABILITY DURING BRITISH PERIOD

As for as the religious and social practices were concerned, the British
maintained the status quo and followed a policy of non-interference,
―actively upholding the supporting the caste order‖.15 ―Even the
protection of caste was decreed by an act of Parliament. In an order, it
was declared, ―due regard may be had to the civil and religious usages
of the natives...‖ There was, however, one positive note.
During the British period a number of small movements came into
being, which showed concern for the Dalits. Before the British,
during the Muslim period, the Bhakti Movement helped the cause of
the Dalits, particularly in the spiritual sphere. This happened mostly
through the Bhakti saints, who either where non-Brahmans or
themselves were Dalits. The efforts of most of these movements
during the British period were limited to reform rather than aimed at
total change. But there were some personalities, who were involved
directly in the struggle either for change or reform, who deserve
mention here, because they certainly left their impact on the present
Dalit movements. They include Jyotirao Phule, Dr. Ambedkar and
Gandhi. Among these, the first two were for the total uplift of the
Dalits, Gandhi‟s work was limited to certain reforms, more within the
Hindu society.
The efforts of Dr. Ambedkar and Gandhi made with regard to the
Dalits during the British period are very important. In a real sense
they were opposing one another in this struggle. This is known
through the different approaches they adopted in dealing with the
British on the question of Dalits. This well-known struggle of theirs
was another glaring example of the Dalits’ problems and it had an
impact on the history of the Dalits for years to come. A number of
reform movements including those by Christian missionaries were at
work for the betterment of the Dalits, which ultimately also

15
Marc Galanter. Competing Equalities in Law and the Backward Classes in Media, Delhi, 1984, p. 19.
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influenced the British Government to do something in this regard.

During this period new titles and phrases were coined to denote the
Dalits. For example for the first time the existence of the ―Depressed
classes‖ were recognised in the text of the Act of 1919.
DEVELOPMENT OF RESERVATION POLICY

In the Indian context, reservation introduced during the last decades

of the 19th century at a time when the sub-continent could be broadly
divided according to two main forms of governance – British India
and 600 princely States.
The awareness to democratic process gathered momentum in India
during British Rule and consequently political parties were formed.
Subsequently, some of them demanded the reservation in legislatures
on communal basis and that was granted by the British rulers. Thus
the reservation in legislatures may be known as mother of the
Reservation Policy in India. However, the reservation in
representative bodies took a long time in getting the modern shape
only after it passed through different Recommendations and Acts. In
1909 when the Minto-Morley Reforms were promulgated, separate
electorates were provided to the Muslims. Though Indian Council
Act, 1909, the British rulers made provisions for reservation of seats
in legislative organs on communal basis in favour of four categories
of persons. However, it did not include Depressed Classes because
they were neither having any political say nor the British rulers had
any interest in their upliftment.
Therefore, Southborough Reform Committee was a medium through
which Dr. Ambedkar for the first time sowed the seeds of reservations
in legislative bodies for the socially deprived and economically poor
classes.
The Government of the India Act, 1919 for the first time in Indian
history recognized the politico-constitutional existence of the people
14 | P a g e

from the Depressed Classes. Though the communal representation

was retained under this Act, yet the practice of nomination of
Depressed Classes also was started as to ensure their representation in
legislative bodies. Dr.Ambedkar whole-heartedly wanted to initiate
the political education amongst the Backward Classes who were
mostly illiterate, therefore, he argued for responsible legislatures. He
wanted that there should be elected legislatures from the Depressed
Classes instead of nominated one but the British Government and the
Congress refused to recognize the demands of special representation
of the Depressed Classes through election.16 In substance, the Govt. of
India Act, 1919 proved as „Mile stone‟ in the history of reservation to
Depressed Class because it provided representation this community in
the legislature for the first time, though by nomination.
Since Independence, the Government of India has adopted the policy
of planned or direct social change in order to provide socio-economic
justice to the weaker sections, especially Scheduled castes and
Scheduled Tribes. The History witnessed the exploitation and
victimization of the members of lower castes by higher castes.

For ensuring all round development of Scheduled Castes and

Scheduled Tribes and to protect them from all types of exploitation, a
number of safeguard have been provided in the Constitution of India.
Art.14 guarantees equality before law and equal protection of law,
under Art. 15 of the constitution no citizen shall be discriminated on
ground of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard
to (a) access to shops, public restaurants, hotels, and place of public
entertainments or (b) the use of wells, tanks, bathing ghats, road and
place of public resorts maintained wholly or partly out of State funds
or dedicated to the use of general public.17

16
Dr. K.K. Kavelekar and Dr. A.S. Chausalkar (ed.). Political Ideas and Leadership of Dr. B.R. Ambedkar, pp.
128-129.
17
The Constitution of India, 1950
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NEED OF PROTECTIVE DISCRIMINATION IN CONTEMPORARY INDIA

In the present circumstances the socio-economic and educational

status of Backward Classes in the Indian society and the prevailing
attitude of caste Hindus towards them compelled the Constitution-
makers to ponder and give them special status to provided special
help so that they can come at par with others.

The question of safeguard arises because of the fear of injustice and

distrust in the minds of sufferers. The necessity of providing special
help by making and exception to equality and non-discrimination
policy was the need of the hour and this has been justified even in the
Constituent Assembly.

Reservation in India aimed to give the weaker sections (SCs, STs) a

helping hand without which competition with upper caste people
would have become unfair and uneven. They were to render social
and other opportunities to the weaker sections of society to cover
educational and economic gap between the upper and the lower
castes. A fair representation of these groups would certainly enhance
the representative characters of the State.

Reservation is guided by consideration of ensuring allotment of

privilege or quota or conferral of state largesse on, a defined class or
category of limited person dispensing with the need of competition
with another defined class of persons or remaining persons.
Beneficiary of reservation is necessarily a minor or smaller group of
persons which deservedly stands in need of protection or push up
because of historical, geographical, economic, social, physical or
similar such other handicaps persons consisting in reserved category
are found to be an underprivileged class of persons and shall be
denied social justice and equality unless protected and encouraged.
Sources of recruitment or entry are carved out for the purpose of
achieving a defined proposition of intermingling at the target or
destination with the two for more categories of such person.
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PROTECTIVE DISCRIMINATION UNDER CONSTITUTION OF INDIA

One of the most distinctive and powerful features of the Indian

society is its division into castes especially of its majority section.
Membership in the caste group is confirmed by birth and is
unalterable except, when it is lost, if expelled by the group. Member
of the each caste, residing in specific areas, have common customs
and more or less a similar style of life with a characteristic diet, dress
and religious observances. There is a variation in kind and number of
castes but due to hierarchical stratification the highest and lowest
castes are easily identifiable. Brahmins are considered to be the
highest while sudras the lowest. Sudras were considered clearly
inferior to the other three castes and were constrained to perform only
menial jobs, forbidden to study the vedas, exception a lot, and
enjoined to be deferential and subservient to the other castes. In recent
time untouchables have been identified as unclean sudras in some
parts of India, elsewhere they are regarded outside the four castes.
Hence untouchables are referred to as outcastes. But they are form the
castes which have the lowest ritualistic standing and often
economically the most depressed class.18

The framers of the Indian Constitution, in their wisdom incorporated

Various provisions (Articles 330 to 342) concerning scheduled castes,
scheduled tribes, Anglo-Indian community, backward classes granting
special privileges. Article 341 empowers president to notify, territory
wise, "castes, races or tribes or parts of our groups within castes, races
or tribes which shall for the purposes of this Constitution be deemed
to be scheduled castes". Article 330 provides reservation of seats for
scheduled castes in the House of People and Article 332 in the State
Legislatures. Article 334 lays down the specific period for which the
reservations are to be continued. The period was kept on increasing as
the Congress and other political parties developed vested interest in
the sustenance of reservations.19 The Constitution also provide for
reserved seats, both in Parliament and state legislatures for the
scheduled castes.

18
R.G. Misra, Reservation Policy and Personal Selection, Uppal Publishing House, New Delhi, 1990, p. 2.
19
Sheo Kumar Lal, Extent of Untouchability and Pattern of Discrimination,
Mittal Publications, New Delhi, 1990, p. 3.
17 | P a g e

The policy of reservation pursued by the state to bring about social

transformation of the scheduled castes is also known as "Protective
Discrimination". For various socio-cultural reasons, the Scheduled
Castes popularly called (Harijans) could not even think of
occupational mobility which could give them a better status in
society.20

Article 15(1) states that, the state shall not discriminate against any
citizen on ground only of religion, race, caste, sex, place of birth or
any of them', also provides in clause (4) 'Nothing in this article or in
clause (2) of Article 29 shall prevent the state from making any
special provision for the advancement of any socially and
educationally backward classes of citizen or for the scheduled castes
and tribes.
The expression 'backward classes' is not defined anywhere in the
Indian Constitution. The scheduled caste and scheduled tribes are no
doubt backward classes. The Indian Constitution clearly shows that
there are other backward classes besides the schedule castes and
schedule tribes. The Constitution recognizes three categories of
backward classes, namely, (i) scheduled castes, (ii) scheduled tribes,
and (iii) other backward classes. The other backward classes are those
which are not as backward as the schedule castes and schedule tribes,
but who are backward as compared to the other advanced sections of
the society. Sub-clauses (24) and (25) of Article 366 define scheduled
castes and scheduled tribes respectively but there is no clause defining
socially and educationally backward classes of citizens.
The Constitution used different terminology for the other backward
classes. For example, Articles 15(4) and 340 use the words 'socially
and educationally backward classes; Article 16(4) speaks of just
'backward classes', and Article 46 is concerned with the 'weaker
sections of people. Even now, the term 'backward classes' is
differently defined in the reports of the different backward classes
commissions and the judgements of various High Courts and the
Supreme Court of India.21

20
Mumtaz Ali Khan, Reservation for Scheduled Castes, Uppal Publishing House, New Delhi, 1994, p. 7.
21
S.N. Singh, Reservation Policy for Backward Class, Rawat Publications, New Delhi, 1996, p. 76.
18 | P a g e

The Constitution of India made certain provisions for the welfare of

deprived social section is known as affirmative action, reservation
policy and positive discrimination. The aims and objectives of the
Constitution, the general agreement and the compromises arrived at in
the Constituent Assembly are reflected in the various Articles and
provisions relating to backward classes, e.g., the Preamble, Articles
38 and 46 of the Directive Principles of the State Policy, Articles 14,
15 and 16 of the Fundamental Rights and Articles 338 and 340 of the
Constitution of India.

The Constitution of India contains a number of provisions which deal

with compensatory preference for the backward classes. The most
important among them are Articles 15(4) and 16(4). Articles 46, 335,
338, 340, 341, 342, 366(24) and 366(25).22 The preamble to the
Constitution of India expresses the solemn resolve to secure to all
Indian citizens equality of status and opportunity..." The chapter on
Fundamental Rights guarantees the citizens many rights which ensure
equality of opportunity and status. Here we are specifically concerned
with those articles of the constitution which embody the principles of
non-discrimination in general and public employment in particular.
Article 15(1) of the Constitution states that ..."the state shall not
discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them". Under 'Cultural and
Educational Rights' Article 29(2) states that "no citizen shall be
denied admission into any educational institution maintained by the
state or receiving aid out of the state funds on grounds only of
religion, race, caste, language or any of them." However, Article
15(4) gives special powers to the state by stipulating that "nothing in
this Article or clause (2) of Article 29 shall prevent the state from
making any special provision for the advancement of any socially and
educationally backward classes or citizens or the scheduled castes and
the scheduled tribes". These general principles are then applied to
more specific areas; like public employment, Article 16(1) states that
"there shall be equality of opportunity for all citizens in matters
relating to employment or appointments to any office under the state".
This is a positive guarantee against discrimination in regard to public
22
Ibid, p. 78.
19 | P a g e

employment. It has been stated negatively in Article 16(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 any employment or office under the state.23

Article 16(4) also provides an exception to the general principle of

non-discrimination in matters relating to employment or appointment
to any office under the state embodied in Article 16(2). It states;
"nothing in this Article shall prevent the State from making any
backward class of citizens which, in the opinion of the state is not
adequately represented in the services under the state." Article 335 of
the constitution is another exception to Article 16(2). It reads: "the
claims of the members of the scheduled castes and scheduled tribes
shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointment to services
and posts in connection with the affairs of the Union or of a State. The
relationship between these provisions remains somewhat obscure.
Article 335 is confined to scheduled caste and scheduled tribes, while
Article 16(4) extends to all 'backwards classes'. Article 335 seems to
include any method of preference while Article 16(4) is confined to
reservation. Finally Article 320(4) provided that nothing in clause (3)
shall require a public service commissions to be consulted as respects
the manner in which any provision referred to in clause (4) of Article
16 may be made or as respect the manner in which effect may be
given to the provisions of Article 335.24

Article 16(4) is confined specifically to public services, while Article

15(4) apply to the state in all of its dealings. Thus the area of
employment, offices, and appointments under the state is controlled
by Article 16 alone and preference within this area must be within the
scope of Article 16(4). This includes judicial offices as well as
administrative posts, but not elective offices. The legal opinion is that
the constitutional provisions for reservations were not applicable in
the sense that public sector enterprises were not constitutionally
obliged to have a policy of reservation.

23
Ibid., p. 81.
24
Ibid., p. 83.
20 | P a g e

Article 16(4) covers not only preferences in initial recruitment into

government services, but also preferences in promotions within the
service. After some hesitation in case of Rangachari Vs. The General
Manager Southern Railway.25 the Supreme Court reluctantly held that
the "post" referred to in Article 16(4) included promotions as well as
initial appointments, but indicated that the preference permissible
under Article16(4) would not extend to other aspects of employment
covered by Articles 16(1) and (2) e.g., salary, increment, pension,
retirement age. Such matters are absolutely protected by the doctrine
of equality of opportunity and do not form parts of the subject matter
of Article 16(4). While the dissenting judges argued that the
reservation was limited to securing adequacy of quantitative
representation of the favoured group, the majority held that
reservation could legitimately be used to secure representation in the
posts of higher grades. In the appeal of the above said case the Court
had pointed to the language of Article 335, requiring the State to take
into account the efficiency of the services in making provisions for
scheduled castes and tribes, and declared the necessity of striking a
reasonable balance between the claims of these classes and efficiency
of the services. Reservations involve not merely reserved seats but
also such preferential rules of recruitment as waiving of age
requirements, reduction in fees, educational qualifications
(prescribing lower minimum of qualifying marks) and special
assistance and training in preparation for competitive examinations.

The framers of the Constitution were conscious of the backwardness

of a large section of the population. It was clear that because of their
backwardness they are not in a position to compete with the advanced
sections who had all the advantages of so called affluence and better
education. The fact that the doors of competition were open to them
would have been a poor consolation to the members of the backward
classes because the chances of their success in the competition were
far too remote on account of the inherent handicaps and
disadvantages. The result would have been that, leaving aside some
exceptional cases, the members of the backward classes would have

25
AIR 1961 Madras 356.
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hardly got any representation in jobs requiring educational

background. It would have, thus, resulted in virtually keeping out
those who were already repressed. The framers of the Constitution
being conscious of the above disadvantage from which the backward
classes suffered enjoined upon the state in Article 46 to promote the
educational and economic interests of the weaker sections of the
people, in particular, of the scheduled caste and Scheduled Tribes and
also protect them from social injustice and all forms of exploitation.26

PROBLEM IN IDENTIFICATION OF BACKWARD CLASS

The problem of determining, who are socially backward classes is

undoubtedly very complex. The original Constitution nowhere defines
the term ―Socially and Educationally Backward Classes‖ (SEBCs). In
the Constituent Assembly, Dr. Ambedkar in reply as to who were
backward classes for the purposes of Art. 16 (4) said, ―A backward
community is a community which is backward in the opinion the
government‖.27 Constitution of India expressly authorizes reservations
but the questions are who should be included among the backward
classes and what should be the criteria of backwardness. How can a
balance be maintained among competing equalities and how for these
reservations to be continued.
As the term OBCs suggests, it is not an exclusively caste-based
classification. Unlike Scheduled Castes and Scheduled Tribes who
were single out in the Indian Constitution for reservation, there are no
clear guidelines on defining OBCs. Over the years, however, caste has
increasingly become synonymous with class for the purpose of
reservation. This easy correlation needs to be interrogated, and the
only way to do so is to conduct a national survey where the relation
between caste and deprivation is explicitly targeted. The identification
problem is complex because there is no any periodical survey
regarding this and there is lack of mechanism which clearly identified
them which is beyond any controversy and acceptable to all. In this
respect government will have to show the existence of compelling
reasons, namely, backwardness, inadequacy of representation and
26
Ibid., p. 33.
27
Sagar Preet Hooda. Contesting Reservations: India Experiment of Affirmative Actions, 2001, pp. 61-62.
22 | P a g e

overall administrative efficiency before making provision for

reservation.

IDENTIFICATION OF CREAMY LAYER FROM OBCs

The identification of creamy layer firstly comes into picture in the

historic case of Indra Sawhney v. Union of India28 under article 16(4)
reservation for backward class, creamy layer – can be and must be
excluded. Exclusion makes the class a truly backward class and
though this truly backward class must be benefited in real sense.
Supreme Court issued direction to the Central Government to specify
the basis of exclusion whether on the basis of income, extent of
holding or otherwise within the time span of four months.

POLITICAL SAFEGUARDS

Article 164(1) provides64, that there shall be a minister in charge of

tribal welfare who may in addition be in charge of the welfare of the
scheduled castes and backward classes or any other work. Article 330
provides, for reservation of seats.29 of SCs / STs in the Lok Sabha.
In pursuance of this 106 seats out of 545 total seats are reserved for
members of SC / ST communities. In the post 11th Lok Sabha, SC /
ST number of MPs outnumbered the fixed quota which indicates that
besides the reservation constituencies SC/ ST candidates are elected
against unreserved Lok Sabha seats also. It is a healthy sign of Social
transformation.

CONSTITUTIONAL 73rd AND 74th AMENDMENTS: EMPOWERMENT

OF SCs, STs, OBCs AND WOMEN

In accordance with the Constitution (73rd Amendment) Act 1992,

seats in Panchayat from Gram panchayat to Zilla panchayat will be
reserved for SC / STs in proportion to their population at respective
level, in direct election.30 Out ofthe seats reserved for SCs and STs

28
AIR 1993 SC 477.
29
Articles 332& 334 lays down the provision relating to the reservation of seats for SCs and STs in the Lok
Sabha and state Vidhana Sabha (reservation of the Anglo-Indian community in the Lok Sabha and the state
Vidhana Sabhas by nomination). This provision has been extended by amending the constitution every ten years
30
Article 243-D Constitution of India.
23 | P a g e

one third will be reserved for women of these communities. These

reserved seats for SCs and STs shall be allotted by rotation to
different constituencies in a panchayat at each level. In accordance
with the Constitution (74th Amendment) Act, 1992 out of total seats
to be filled by direct election,seats shall be reserved for SC/STs
inproportion to their population in the municipal bodies at each
level.31 Out of these seats for SCs / STs at least one-third shall be
reserved for SC / ST women. Reservation for SCs and STs in the
Panchayats and Municipalities is an important step towards their
political empowerment. As a result of these provision more than
seven lakhs elected representatives including women from these
groups are playing important roles in decentralised governance,
planning and development.

NATIONAL COMMISSION FOR SC/STs

Under Article 338 and 338-A32 National Commissions for SCs and
STs are constituted to investigate about all matters relating to
safeguards, inquire intocomplaints about deprivation of rights, to
recommend for their better protection. In order to enable more
effective and focused work for their amelioration, bifurcation of
National Commission into two separate commissions was affected by
the Constitution (89th Amendment) Act, 2003. This hints how
instrumentalities for social change are also reshaped with changing
times.

31
Article 243-T Constitution of India.
32
Article 338-338A prescribes the following duties for the respective commissions;
i. To investigate and monitor all matters relating to the safeguards provided for the scheduled castes
(scheduled Tribes) under this constitution or under any other law for the time being in force or under
any order of the government and to evaluate the working of such safeguards;
ii. To inquire into specific complaints with respect to deprivation of rights and safeguards of the
scheduled castes (scheduled Tribes);
iii. To participate and advise on the planning process of the socio-economic development of the
scheduled castes (scheduled Tribes) and to evaluate the progress of their development under the
union and any state;
iv. To report to the president annually and such other times as the commission may deem fit, report
on working of those safeguards;
v. To make in such reports recommendations as to the measures that should be taken by the union or
any state for the effective implementation of those safeguards and other measures for the protection,
welfare, and socio-economic development of the scheduled castes (scheduled Tribes);
vi. To discharge such other functions in relation to the protection, welfare and development and
advancement of the scheduled castes (scheduled Tribes) as the president may, subject to the
provisions of any law made by parliament, by the rule satisfy.
24 | P a g e

CONCLUSION

Social transformation is a vital, important, and complex subject that

speaks of and deals with fundamental changes in society, its structure,
method and manner of functioning. No country can be free from the
impact and effect of these changes and society in turn has to respond
either by choice or by necessity or both, with appropriate legal
framework, policies and programmes. India is not only the biggest but
also a developing, multicultural democracy. Given the diversities, in
our country, the task of social transformation by bringing about
appropriate changes is stupendous and complex.

Protective discrimination is the policy of granting special privileges

to the downtrodden and the underprivileged sections of society, most
commonly SC/STs, OBCs and including 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. This doctrine of protective discrimination brings
many transformations in the life of people who are considered as
backward.

The most effective way to raise the standard of living of a group of

marginalized people, the so-called lower classes of the caste system,
is to provide them with better education. But it was never an easy
task, especially in a society where caste extremes still exist. To
overcome such a situation, the creators of the Constitution of India
have introduced the Doctrine of Protective Discrimination. As part of
this idea, reservation is being implemented for the backward classes
in higher education institutions and democratic elections in India.
This has resulted in changes in the living conditions of the most
backward classes. But I do not think that in all respects this idea has
changed the lives of the backward classes.
The present situation suggests that a society that treats all human
beings without caste discrimination will have to wait a long time.

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BIBLIOGRAPHY

 Law & social transformation—P. Ishwara Bhat

 Law in a changing society__ W. Friedmann
 Historical development and concept of protective
Discrimination__ Article from Internet
 Protective discrimination in constitution of
India __ Article from Internet
 Protective discrimination: maintaining the balance
Under constitution__ Article by Dr. G.R. Jagadeesh
 Protective discrimination__ By Srabanee Gosh,
Legalservice India.com

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