Concept of Protective

Discrimination Under the

Indian Constitution
Constitutional Law

SVKM’s JITENDRA CHAUHAN COLLEGE OF LAW

Keya Shah
FYLLB
B109

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 ACKNOWLEDGEMENT

While I prepared this project, it is the result of many people's efforts. To begin, I'd like to express my
gratitude to our Professor MINAL SHARMA for her assistance in developing the project on Concept
of Protective Discrimination Under the Indian Constitution

and for her insightful suggestions.

I pay my deep sense of gratitude to other teaching and non-teaching staff that encouraged
me to the highest peak and to provide an opportunity to prepare the project. I am
immensely obliged to my friends for their elevating inspiration, encouraging guidance and
kind supervision in the completion of my project.

Last but not least, my parents are an also important inspiration for me. So with
due regards I express my gratitude to them.

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 Table Of Content

Sr. no. Particulars Page no.

1. Introduction 4

2. The Rationale Underlying the Principle of Protected 5

Discrimination

3. Protective Discrimination for Minimization of

7
Inequality

4. 4.1 Article 342(1) the Constitution of India: 8

discourse
4.2 Reservation within reservation by micro
classification
5 5.1 Women and children as vulnerable class
10
5.2 Free and compulsory education to all children
5.3Cultural and educational rights

6 Political Safeguards
12

7
Reservation in Private Sector 13

8
Conclusion 14

9
Table of Cases 15

10
Bibliography 17

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 Introduction

Equality as an ideal has been a driving force in human civilization's development. Essentially,
the concept appears to have evolved from a consideration of how to deal with differences in
people within the same group or outside of it. The early response was one of subjugation,
exclusion, elimination, and segregation, which resulted in wars, slavery, and institutional
discrimination against one class by the other. The approach to equality improved with
rationality and small utilitarianism. The emphasis was on rationalising inequalities in a way
that promoted division of labour, mutual coexistence, and socio-cultural legitimizations that
suited the dominant class.

The founding fathers of our Constitution believed that inequitable forces in the
socioeconomic system and political organisations had created an imbalance in society,
attempting to put certain people, particularly SCs/STs, at a disadvantage. Members of a
specific demographic encounter a series of socioeconomic disadvantages that limit their
access to bare necessities1. The major problem in developing India is the issue of sustainable
livelihood, social and political participation of vulnerable groups. Notwithstanding the
legislative measures and reporting requirements, there is a huge discrepancy between the
administration of justice and the administration of equity.

As a necessary consequence of this historical process, several conceptions of equality remain

competitive for dominance in the world's legal systems today. The most popular model is
"equality of status and opportunity, along with non-discrimination basis of religion, gender,
race, caste, and so on." The essence of the equality model adopted by that of the Indian
constitution has been to demolish age-old barriers which always denied equality of status and
opportunity to segments of the population based on caste and gender. Empowement2 of the
most vulnerable populations is a method of benevolent social transformation.

Because the concept of equal citizenship and equal liberties for all is a foundational value of
the constitution, the distribution of benefit and burden based on community, caste, and gender
appears strange and must be justified by a balanced application of “formal equality” and

1
Health, Education, Shelter, Food, Employment, Justice and Equity etc
2
Empowerment fosters self-organization, overcomes subordination, instils confidence in all-round growth by
utilising state-provided special services, and allows for greater participation in resource control and utilisation.

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 The Rationale Underlying the Principle of Protected Discrimination

Article 14 mandates equality before the law. However, because all people are not equal by
nature, achievement, or circumstance, a mechanical equality before the law may result in
injustice.

As a result, the guarantee against denial of equal protection under the law does not imply that
the same rules of law should be made equally applicable to all persons regardless of
differences in circumstances or conditions.3

Different classes or groups of people have different needs, which necessitates different
treatment. Thus, Art 14 states that "equals should be treated alike," but it does not state that
"unequals should be treated equally." On the other hand, where people or groups of people
are not situated equally, treating them as equals would be a violation of Art. 14 because it
would result in inequality.4 This results in classification of different groups of people and
differentiation between such classes.

Protective discrimination policy prescribed by the Indian constitution and supported and
executed by legislatures has certain logic behind it. Equality before law is the most precious
democratic right of an Indian citizen but by merely ensuring equality of opportunity to all
citizens in respect of educational and employment opportunity, we may be ignoring the
special problems of some backward sections of our society who have suffered from social,
political, economic, educational deprivations for years. It is well known dictum that there is
equality only among equals. To equal unequals is to perpetuate inequality.

As a result, in order to apply the principle of equality in practise, the courts have developed
the principle that if the law in question is based on rational classification, it is not considered
discriminatory. So, technically, it may be referred to as Protective Discrimination in order to
provide true equality to those who are unequal among equals in some way.

When we allow the weak and strong to compete on an equal playing field, we are tipping the
scales in favour of the strong. In fact, unless underprivileged people receive special
assistance, it is impossible to claim that they have equal opportunities as more affluent
people. The real justification for the demand for social justice is that underprivileged citizens
3
Chiranjeet Lai- vs- Union of India AIR 1951 SC 41 : 1950 SCR 869
4
Ashutosh Gupta- vs- State Rajasthan (2002) 4 SCC 34

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should be treated preferentially. The principle of equality of opportunity necessitates bringing
all communities and sections of the Indian population to a true equality and capacity level,
and as a result, they must be positively compensated by reducing shares from advanced
categories of people.

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 Protective Discrimination for Minimization of Inequality

The Indian Constitution guarantees social, economic, and political justice as well as equality of status
and opportunity to all citizens. Articles 14, 15, 16, 17, 18, and 29(2) of the Indian Constitution contain
the code of equality .5 Reservations for scheduled castes, scheduled tribes, socially and educationally
backward classes, and other socially and educationally backward classes are key public policies
adopted by Indian society. Protective discrimination6 is one of the state's initiatives to alter the lives of
the oppressed, underprivileged, and vulnerable sections of Indian society.

In areas of "employment" or "appointment" to any office under the State, Article 16(1) ensures equal
opportunity for all people. Clause (2) states that no citizen shall be ineligible for or discriminated
against in any employment or office under the State solely on the basis of religion, race, caste, sex,
descent, place of birth, residency, or any combination of these factors. Exceptions to these general
standards of equality of opportunity are found in clauses (3) and onwards.

Article 16(4) gives the state the authority to create reservations in public employment in favour of any
backward classes of citizens who, in the state's opinion, are not adequately represented in the state's
services.

In the historic Mandal Commission case7, the Supreme Court held that the sub-classification of
backward classes into more backward and backward classes for the purpose of Article 16(4) can be
done. But, as a result of sub –classification, The reservation cannot be greater than 50%. The
distinction should be made on the basis of social backwardness. In fact, such a classification would be
required to assist more backward classes; otherwise, those from the backward classes who are slightly
more advanced than the more backward classes could take all of the seats. This interpretation also
applies to Article 15(4), because the words ‘Backward Classes of Citizens' in Article 16(4) are
broader and include the SCs and STs, as well as other socially and educationally backward classes.
On this point, the decision in Balaji v. State of Mysore has been overturned, as has the decision in
State of Andhra Pradesh v. Balram.

5
The idea of equality expressed in the preamble is stipulated here. This provision has enabled the states to
reserve seats for SCs and STs in educational institutions including engineering and Medical colleges.
6
Protective Discrimination is a contentious issue that is in vogue from 1991 and successive amendments to
Article 15 and 16
7
AIR 1993 SC 477

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 Article 342(1) the Constitution of India: discourse

In terms of identifying SCs and STs, under Articles 341 and 342, the president has the
authority to issue public notices of lists specifying castes, races, tribes, or parts of groups to
be considered SCs and STs. Article 341(1) states that the President may, after consultation
with the Governor of any state or union territory, specify by public notification the castes,
races, or tribes that shall be deemed to be scheduled castes in relation to that state or union
territory for the purposes of this constitution. According to Article 341(2), the Parliament
may by law include or exclude any caste, race, or tribe or part of or group within any caste,
race, or tribe from the list of scheduled castes specified in a notification issued under clause
(1), but except as aforesaid, a notification issued under the said clause shall not be varied by
any subsequent notification. The only competent authority for changing the list of SCs and
STs is the Parliament's legislative power.

Reservation Within Reservation by Micro Classification

The fact that there has not been a uniform level of development among various castes
grouped under the category of Scheduled castes has given rise to the problem of uneven
competition, as a result of which more advanced sections among them are able to reap
benefits while the weakest of the weak lag behind.8 Because the Mandal Commission's case
judgement only applies to OBC and SEBC, there is no application of the creamy layer test to
exclude the forward section from competition within the Scheduled castes category, this
unfair situation has arisen.

Since states have both the power and the responsibility to protect the interests of the
weaker sections of society under Articles 15(4), 16(4), and 46, it is a justifiable act on their
part to subdivide the castes based on population in order to allocate their respective
entitlements. The list of SCs specified by the president in consultation with the state
governors under Article 341(1) is preserved, and only the allocation is monitored based on
pragmatic assessment of facts. It is necessary to distinguish between disruption of the list and

8
Supra Note 32. p. 496.

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allocation of the quantum of share.

There is also an opinion that once a reservation benefit has been claimed and obtained
by a candidate, even if he or she is SC/ST, that candidate is ineligible to claim another
reservation benefit in his or her carrier. It is a list of castes, not a single caste, as the
nomenclature scheduled castes suggests. It is a travesty of truth to treat the castes listed as
scheduled castes as a homogeneous class because of their different types of employment,
socioeconomic status, or cultural background, even going so far as to deny co-dining or
marital relations among them.9

9
Supra Note 32 at 499.

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 Women and children as vulnerable class

Article 15(3)10 authorises the state to make special provisions for "women and children." Because of
their very nature, women and children require special treatment. The physical structure of women and
the performance of maternal functions disadvantage her in the struggle for subsistence, and her
physical well-being becomes an object of public interest and care in order to preserve the race's
strength and vigour.11

Free and compulsory education to all children

The Constitution (86th Amendment) Act of 2002 added a new Article 21A, making education a
fundamental right for all children aged 6 to 14 years. It states, in part, that “the state shall provide free
and compulsory education to all children aged six to fourteen years in such manner as the state may
by law determine.”12

Cultural and educational rights

Any section of the citizens residing in the territory of India or any part thereof having distinct
language, script, or culture of its own shall have the Right to conserve the same.13 Article
29(1) has special significance for all the scheduled tribes. However, this provision need not
be understood to educate the tribal only in their language and thereby making them
isolated. They should be educated in the language of the state as well as national language
to expose them to outside knowledge.

Every local authority within the state shall make every effort to provide adequate facilities
for instruction in the mother tongue to children who belong to linguistic minority groups at

10
15(3): Nothing in Article 15 limits the State's ability to make special provisions for women and children.
11
Muller v. Oregan, 52 L.Ed 551
12
Article 45: provision for early childhood care and education for children under the age of six - The State shall
make every effort to provide early childhood care and education for all children until they reach the age of six.
13
Article 29(1), Constitution of India

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the primary stage of education, and the president may issue directions to any state as he
deems necessary or proper to ensure the provision of such facilities.14 The majority of tribal
communities have their own language or dialects, which usually belong to a different
language family than the state's official language. However, facilities for teaching in the
national language and English, in addition to the mother tongue and local dialect, should be
provided.

14
Article 350(A), Constitution of India.

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 Political Safeguards

Article 164(1) provides15, that there shall be a minister in charge of tribal welfare, who may
also be in charge of the welfare of scheduled castes and backward classes, as well as any
other work.
Article 330 provides for the reservation of seats in the Lok Sabha for SCs and STs. In
accordance with this, 106 seats out of a total of 545 are reserved for members of the SC/ST
communities. In the post-11th Lok Sabha, the number of SC/ST MPs outnumbered the fixed
quota, indicating that, in addition to reserved constituencies, SC/ST candidates are elected to
unreserved Lok Sabha seats. It is a positive sign of social change.

According to the Constitution (73rd Amendment) Act of 1992, seats in Panchayats from
Gram Panchayat to Zilla Panchayat will be reserved for SC / STs in direct election in
proportion to their population at the respective level.16 One-third of the seats reserved for SCs
and STs will go to women from these communities. These reserved seats for SCs and STs
will be assigned to different constituencies in a panchayat at each level by rotation.
According to the Constitution (74th Amendment) Act of 1992, seats in municipal bodies at
each level shall be reserved for SCs / STs in proportion to their population out of the total
seats to be filled by direct election.17

The provision of Part IX of the Constitution relating to Panchayats has been extended to the
scheduled areas with the enactment of the Panchayat (extension to the Scheduled Areas) Act,
1996, subject to exceptions and modifications that a legislature of a state shall not make any
law inconsistent with any of the following features- customary law, social and religious
practises, and traditional management practices of community services.

15
In the State of Bihar, Madhya Pradesh and Orissa.
16
Article 243-D, Constitution of India.
17
Article 243-T, Constitution of India.

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 Reservation in Private Sector

With the expansion of the information technology (IT) and biotechnology (BT) sectors, as
well as the flourishing of Multinationals and Indian-listed companies, reservationists are
focusing their attention on high-level positions in these fields. The state's ability to provide
infrastructural facilities is sometimes used to seek governmental intervention in order to
pressure the private sector to follow reservation policy. Reservation proponents in the private
sector argue that reservation is necessary for reducing economic discrimination, promoting
equitable growth, securing the tenure of dalit workers, and minimising potential conflict.
With the growth of privatisation, the arena of the public sector is shrinking, as is the scope for
special provision for the underprivileged.

According to a study commissioned by the National Human Rights Commission in 2002,

"autonomy of operation is critical in the private sector because the enterprise bears the
responsibility for profit and loss." As a result, those who invest their money will not accept
limitations on their freedom. There is no accountability of private sector enterprises to the
government or the general public. They must answer to their own stockholders. High levels
of performance in the private sector cannot be maintained in the era of privatisation,
liberalisation, and globalisation (LPG) without a flexible system of job contracts.

For a variety of reasons, the study report questioned the “Constitutional Sustainability” of the
proposal for job reservation in the private sector for those belonging to scheduled castes and
scheduled tribes. That is why, even during the peak of the government's commitment to
reservation as a strategy of empowerment for SCs/STs, the government did not consider
instituting reservation of jobs in the private sector. According to the report, with the Supreme
Court intervening from time to time to limit the scope and ambit of reservation, it “seems
highly improbable” that the idea of job reservation in the private sector would receive legal
sanction.18

18
Retired bureaucrat K.B.Saxena wrote the Report in 2002.

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 Conclusion

Initially, we all knew that the genie of affirmative action was installed in the Constitution for
a temporary period of ten years, but fortunately or unfortunately, it has remained in place to
this day, and the census of 2011 has confirmed it, threatening the Constitutional goal of a
“casteless society” rather than a “caste-based” society. As a result, attempts have been made
to find some agreeable or significant solutions for balancing the interests of people who are
actually socially, economically, and educationally backward without making classifications
on the basis of 'caste,' who claim reservations or special provisions by birth.

In India, the debate over affirmative action is bitter, and it is increasingly manifesting itself in
violence. However, a democracy, which is essentially a social construct, is not governed by
logic or ethics. Social engineering, which is influenced by political bargaining, is at the heart
of democratic success. In India, the process is underway, and only time will tell whether its
experiments were successful or not.

The 50 percent ceiling limit, the concept of the creamy layer, and the compelling reasons,
which include backwardness, inadequacy of representation, and overall administrative
efficiency, are all constitutional requirements without which the structure of equality of status
and opportunity would collapse.

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 Table of Cases

1. Indra Sawhney & Others v. Union of India AIR 1993 SC 477

Although the constitution recognised social and educational backwardness, it did not
recognise economic backwardness. The court upheld separate reservations for OBCs
in central government jobs, but only in the "creamy layer" (the forward section of a
backward class, above a certain income).The reservation should never be more than
50% full.

2. Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty

Association AIR 1998 SC 1767

There can be no reservations when it comes to a single post (as it would amount to
100 percent reservation

3. M. Nagraj & Others v. Union of India and Others AIR 2007 SC 71

The 85th amendment's constitutionality was upheld. Art 16 (4)(A) was amended by
the 85th constitutional amendment to include consequential seniority

4. Ashoka Kumar Thakur v. State of Bihar 1995 5 SCC 403

The Supreme Court ruled that additional criteria codified by Bihar and Uttar Pradesh
to identify the "creamy layer," such as educational qualifications and property
holdings, were arbitrary and unconstitutional.

5. Syndicate Bank SC & ST Employees Association & Others v. Union of India &
Others 1990 SCR(3) 713; 1990 SCC Supl. 350

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Union of India vs. Bihar State Harijan Kalyan Parishad: Reservation policy cannot be
denied by method of selection and is applicable to the highest level of promotion;
reaffirmed. In April 1993, Syndicate Bank was the only financial institution that
implemented this court decision.

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 Bibliography

 “Affirmative Action and Justice” by Michel Rosenfeld in Ashok Acharya’s

“Affirmative Action for Disadvantaged Groups”

 Journal of Indian Law Institute

 socialjustice.nic.in.

 Statute: The Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

 The Second Backward Classes Commission (1978-1980).

 https://main.sci.gov.in/supremecourt/

 Manupatra

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