Compensatory Descrimination


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Q. What provisions have been made in the constitution for reservation of seats in the legislature for SC/STs and women?.

To ensure that the problems faced by SC/STs are appropriately addressed, it is imperative that first those problems be highlighted and brought to the attention of the law making bodies. The makers of the constitution felt that nobody can understand their problems better than SC/STs themselves. Thus, they provided for the adequate representation of SC/STs in the constitution. The same holds true for Anglo Indians as well.

The following are the provisions meant for this purpose -

Provisions for SC/ST

Art 330

Under this article, seats have been reserved in the house of people for SC/STs. The number of seats reserved in a state for SC/STs is proportional to the population of SC/STs in that state. Based on the demographics reflected by census, certain constituencies are reserved and only SC/STs can contest from such seats. However, there is only one electoral roll. There is no separate electorate for SC/ST. Further, it is important to note that SC/STs still can contest elections in unreserved constituencies as well. This was held by SC in the case of V V Giri vs D S Dora AIR 1959 .

Art 332
Under this article,seats have been reserved in state legislatures for SC/STs. The number of reserved is proportional to the population of SCs and STs in that state.

In the case of Bhaiya Lal vs Hari Krishen Singh AIR 1965, SC held that to see if whether a caste belongs to ST or not, the list issued by the President under Art 341 must be consulted.

Art 334
This article puts a time limitation on the reservation of seats in legislature( Lok Sabha as well as state legislatures). Initially, seats were reserved only for 10 years but it has been increased by 10 yrs regularly and as of now, it is 60 yrs from the commencement of the constitution.

Provisions for Anglo Indians

Art 331 allows the President to appoint at the most two members in the house of people to represent the Anglo Indian community. Art 333 allows the Governor of a State to appoint 1 member in the state legislature if he feels that the Anglo Indian community has not been represented.

Provisions for Women
There have been several attempts by various governments to introduce a bill to reserve seats in the parliament. However, no such bill has been introduced, let alone passed.

Discussion on reservation to women - Fatta.



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Q. What do you understand by Compensatory Discrimination? Is it against equality? How successful has it been in India?

Compensatory Discrimination is a term coined for the policy or programs that give preference to a group or groups of people with a stated goal of countering and compensating the past or ongoing atrocities, excesses, injustice, or discrimination of any sort against them. This measure has been adopted for uplifting the weaker sections of a society by several countries including India, USA, Belgium, Brazil, and even China. In USA, it is called as Affirmative Action. A direct application of compensatory discrimination can be seen in reservation of seats in educational institutions, reservation of vacancies in public service, and preference to such groups in government contracts.

Purpose
For a society as a whole to grow it is necessary that every section of the society take part in the development of the society. At the same time every section should also receive the benefits of the growth. A society can never grow if several sections of the society are repressed or exploited. Every section of the society should get a sense of hope that they have a better future ahead.  Further, it is also true that historically several sections of our society have been discriminated against and there exists a prejudice against them in the socially uplifted sections. To bring such downtrodden sections of the society at the same or comparable level, the society as a whole must take special efforts and measures, which is exactly what the purpose of compensatory discrimination is.

Another important objective of compensatory discrimination is the reduction in social discrimination existing in the minds of people to the extent that the elite of the society reflects every section of the society comparably thereby bringing upon the end of compensatory discrimination itself.

Target Groups

As noted before, Compensatory Discrimination has been adopted in several countries in the world. In US and South Africa, the target groups are blacks and other ethnic minorities, while in India the target groups are based on caste and sex.
In India, Sudras have been historically oppressed. Position of women also has only been marginally better than sudras. Oppression of sudras and women even had religious sanction as is evidenced in the harsh treatment meted out to them in  Manu Smriti. Therefore, it is for these people that Compensatory Discrimination is employed. Another important but less talked about group is of senior citizens (old people).

Logic Behind Compensatory Discrimination

It is often said that meritocracy alone should be the factor in determining social progress of a country. However, there are several problems with meritocracy as mentioned below:
  1. It does not take into account the social capital already accumulated by the classes who have historically been socially powerful. How can a person whose family has been suppressed since thousands of years compete with a person who always had the best of the resources available to his disposal? 
  2. The measurement of merit itself may be biased because of past prejudices.
  3. Acquisition of merit such as good education and past experience itself is difficult for such sections because of discriminatory practices of the past.
  4. People tend to hire people who are from the similar background, which puts the weaker classes at a disadvantage. 
The only solution to this problem is helping them to reach a stage where they can compete with everybody on an equal footing.

Compensatory Discrimination and Equality
Before we talk about equality with respect to Comp. Desc, we must first understand the concept of equality. If two people are found guilty of murder, and one of them is a child. Should the law treat them equally and award the same punishment? While working at a construction site, should women be required to lift the load of same weight as men? The answer for both is a resounding no. A Child is not mentally capable of distinguishing between right and wrong. A woman is physically not strong enough to lift heavy loads. Thus, it is clear that merely a blind application of law is not right. Same laws cannot be applied in unequal circumstances.This is the idea adopted by Indian Constitution about  equality. Like should be treated alike. This principle was adopted by the US Supreme Court in the case of Lindsley vs Natural Carbonic Gas Co in 1911 as the meaning of Equal Protection of Laws.
Extending the same principle, it is not hard to understand that certain classes of the society are measurably weaker that others in terms of social upliftment. Subjecting them to the same standards of meritocracy would amount to injustice.
Therefore, I believe that compensatory discrimination is not against equality. It is, in fact, just another facet of equality.
In the case of N M Thomas vs State of Kerala, SC has held that art 16(4), which is a prime source of compensatory discrimination, is not an exception to art 16(1) but only an instance of classification. It further held that reservation can be done even without art 16(4) and under art 14 that permits reasonable classification.  In the case of  Indra Sawhney vs Union of India, the Supreme Court has upheld the view given in N M Thomas case. Thus, such provisions do not, in principle, go against equality.

Implementation in India
Indian Constitution understands the need for special measures for the weaker sections of the society and contains several provisions for the same. Some important ones are:

Art 15 (3): It allows the state to make special provisions for women and children. Because of this article, a special commission for women has been established. Several women friendly laws such as Prevention of Domestic Violence Against Women Act 2006 have been passed.

Art 15 (4): It allows the state to make special provisions for backward classes in education and other fields.  A Commission each for Schedule Castes and Scheduled Tribes has been established. These commissions report directly to the president.

Art 16 (4): It allows the state to reserve vacancies in govt. employment for backward classes.

Art 17: Abolishes untouchability.

Art 19(5):  Allows state to impose reasonable restrictions on freedom of movement and occupation to protect the interest of scheduled tribes.

Under Directive Principles of State Policy, articles 40, 42, and 45, strive to give several benefits to weaker sections including reservation in panchayats for women and backward classes, free pregnancy care and delivery, and prevention of exploitation of children. Art 46 enjoins the state to take special care in promoting the social and educational interests of weaker sections of the society specially SCs and STs and to protect them from injustice. No provision made under art 46 can be challenged on the grounds that it violates rights given in Part III. Art 44 strives to implement Uniform Civil Code. SC, in the cases of  Shah Bano vs Mohd Ahmed Khan and Sarla Mudgal vs Union of India has already directed the states to try to implement Art 44 to ensure equal treatment of women under all religions.

Art 164: Provision of Special minister of state for tribal welfare for the states of MP, Bihar, and Orissa.

Art 275: Allows grant in aids to states for promoting tribal welfare.

Art 330/332 : Allows reservation of seats for SC and ST in Lok Sabha and state assemblies.

Art 335 : It has been amended to allow relaxation of qualifying marks for SCs and STs in examinations for educational institutes or promotion in jobs.

Art 338, 338 A, and 339: Provides for the establishment of National Commission of Scheduled Castes and Scheduled Tribes. Under 339, Center can direct the states to implement and execute policies for the betterment of Scheduled Tribes.

Art 340: Allows the president to appoint a commission to investigate the conditions of socially and educationally backward classes and table the report in parliament.

Success In India
The policies implemented under the doctrine of compensatory description have achieved a lot of success. We can see that people of all castes travel in the same bus or train without any mention of caste. Upon receiving opportunities people of backward casts have become respected scientists, engineers, and doctors. It is due to favorable treatment of these classes that a big chunk of these classes is now financially independent. In the past there was absolutely no hope for them to be able to do anything other than menial tasks such as cleaning latrines.
Women have also achieved a lot because of compensatory discrimination. Policies such as free education to girl child, reservation in educational institutions have ensured that 50% of the population of our country, which was dormant or was only involved in house work, can now actively take part in building a prosperous future of our country.

Policies started under this policy has increased awareness in backward classes about their rights. Most importantly, when a person from a community moves up and reaches a position of power and financial wellness, it gives hope to other members of the community that they too can achieve many things.

Critical Analysis
There are several drawbacks to this as well. For example, instead of removing the basis of discrimination (such as caste or color), Compensatory Discrimination highlights it. It is also the cause of dissatisfaction among the poor of the forward classes. Some experts believe that there are not enough economic benefits of this approach to justify the continuance of division in the society. Some others believe that it has basis only in politics.

A key measure of its success would be the competition in filling up the reserved posts. We can see that even after so many years of reservation, posts are left vacant for the want of qualified people. In a country with a billion people, it is extremely surprising to not find enough qualified people. This proves that reservation has not really helped uplift the backward classes.  Thus, it can be said that while reservation is necessary, it alone is not the solution. It must be coupled with other programs that provide primary and secondary education, food, clothing, and financial help to backward sections, thereby making them capable of taking advantage of reservation.




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Q. Comment on the provisions of the constitution conferring special protection on SCs, STs, women, children and older persons (weaker sections). In your opinion, to what extent should they be given reservation? Is reservation a constitutional right?

The vision of the formulators of the Indian Constitution was to develop India into a socialist state. A socialist state is the one that protects and uplifts its weaker sections. It strives to reduce the social and economical inequality between the people. To achieve this goal, our constitution has incorporated several provisions that are in the benefit of the weaker sections of the society. Based on these provisions the central and state governments implement plans or frame laws to turn this vision into reality.

What are weaker sections

SCs/STs
Due to the caste system prevailing in India, the sudras have been exploited for the ages. They were denied the right to education and thus were left languishing behind, socially and economically. Such people have been categorized into Scheduled Castes.  Tribal communities, who never mixed with the main society, are similarly challenged and are categorized into Scheduled Tribes.

Backward Classes
The constitution does not define the term backward classes. It is up to the center and the states to specify the classes that belong to this group. However, it is understood that classes that are not represented adequately in the services of the state can be termed backward classes. Further, the President can, under Art. 340, can constitute a commission to investigate the condition of socially and educationally backward classes. Based on this report, the president may specify the backward classes.

Women
Historically, the condition of women in India has also been very bad. They have always been treated as second class citizens and did not have any decision making power and lacked in education. Due to the social structure in India, there is a marked prejudice against women in every field.

Others
Other groups of people who are severely disadvantaged are children, older people (senior citizens), and people with disability.

Provisions for weaker sections
The constitution has adopted the principle of Compensatory Discrimination to uplift the weaker sections. Under this principle, the constitution has made provisions that compensate these sections by discriminating in favor of them for past wrongs. The following are the various provisions provided in the constitution for this purpose:

For SCs/STs

Art. 15(4) :  Clause 4 of article 15 is the fountain head of all provisions regarding compensatory discrimination for SCs/STs. This clause was added in the first amendment to the constitution in 1951 after the SC judgement in the case of Champakam Dorairajan vs State of Madras AIR 1951. It says thus, "Nothing in this article or in article 29(2) shall prevent the state from making any provisions for the advancement of any socially and economically backward classes of citizens or for Scheduled Castes and Scheduled Tribes." This clause started the era of reservations in India.

In the case of Balaji vs State of Mysore AIR 1963, the SC held that reservation cannot be more than 50%. Further, that art. 15(4) talks about backward classes and not backward castes thus caste is not the only criterion for backwardness and other criteria must also be considered.

Finally, in the case of Indra Sawhney vs Union of India AIR 1993, SC upheld the decision given under Balaji vs State of Mysore that reservation should not exceed 50% except only in special circumstances. It further held that it is valid to sub-categorize the reservation between backward and more backward classes. However, total should still not exceed 50%. It also held that the carry forward rule is valid as long as reservation does not exceed 50%.

Art. 15 (5) : This clause was added in 93rd amendment in 2005 and allows the state to make special provisions for backward classes or SCs or STs for admissions in private educational institutions, aided or unaided.
Art. 16(4): This clause allows the state to reserve vacancies in public service for any backward classes of the state that are not adequately represented in the public services.
Art. 16 (4A): This allows the state to implement reservation in the matter of promotion for SCs and STs.
Art. 16(4B): This allows the state to consider unfilled vacancies reserved for backward classes as a separate class of vacancies not subject to a limit of 50% reservation.

Art. 17:  This abolishes untouchability and its practice in any form. Although the term untouchability has not been defined in the constitution or in any act but its meaning is to be understood not in a literal sense but in the context of Indian society. Due to the varna system, some people were relegated to do menial jobs such as cleaning toilets. Such people were not to be touched and it was considered a sin to even touch their shadow. They were not even allowed to enter public places such as temples and shops. The constitution strives to remove this abhorring practice by not only making the provision a fundamental right but also allows punishment to whoever practices or abets it in any form. Towards this end, Protection of Civil Rights Act 1955 was enacted. It has implemented several measures to  eradicate this evil from the society. It stipulates up to 6 months imprisonment or 500 Rs fine or both. It impresses upon the public servant to investigate fully any complaint in this matter and failing to do so will amount to abetting this crime. In the case of  State of Kar. vs Appa Balu Ingle 1993, SC upheld the conviction for preventing a lower caste person from filling water from a bore well.
In Asiad Projects Workers Case 1982, SC has held that right under Art 17 is available against private individuals as well and it is the duty of the state to ensure that this right is not violated.

Art. 19(5): It allows the state to impose restriction on freedom of movement or of residence in the benefit of Scheduled Tribes.

Art. 40: Provides reservation in 1/3 seats in Panchayats to SC/ST.
Art. 46: Enjoins the states to promote with care the educational and economic interests of the weaker sections, specially SC and STs.

Art. 164: Appoint special minister for tribal welfare in the states of MP, Bihar, and Orrisa.

Art. 275: Allows special grant in aids to states for tribal welfare.

Art. 330/332: Allows reservation of seats for SC/ST in the parliament as well as in state legislatures.

Art. 335: Allows relaxation in qualifying marks for admission in educational institutes or promotions for SCs/STs.
In the case of State of MP vs Nivedita Jain AIR 1981, SC held that complete relaxation of qualifying marks for SCs/STs in Pre-Medical Examinations for admission to medical colleges is valid.

Art. 338/338A/339: Establishes a National Commission of SCs and STs.  Art. 339 allows the central govt. to direct states to implement and execute plans for the betterment of SC/STs.

Art. 340: Allows the president to appoint a commission to investigate the condition of socially and economically backward classes and table the report in the parliament.

For women

Art. 15(3): It allows the state to make special provisions for women and children. Several acts such as Dowry Prevention Act have been passed including the most recent one of Protection of women from domestic violence Act 2005.
Art. 23: Under the fundamental right against exploitation, flesh trade has been banned.
Art. 39: Ensures equal pay to women for equal work.
In the case of Randhir Singh vs Union of India 1982, SC held that the concept of equal pay for equal work is indeed a constitutional goal and is capable of being enforced through constitutional remedies under Art. 32.
Art. 40: Provides 1/3 reservation in panchayat.
Art. 42: Provides free pregnancy care and delivery.
Art. 44: It urges the state to implement uniform civil code, which will help improve the condition of women across all religions. It has, however, not been implemented due to politics. In the case of Sarla Mudgal vs Union of India AIR 1995, SC has held that in Indian Republic there is to be only one nation i.e. Indian nation and no community could claim to be a separate entity on the basis of religion.

There is a plan to provide reservation to women in parliament as well.

For children
Art. 19 A: Education up to 14 yrs has been made a fundamental right. Thus, the state is required to provide school education to children.
In the case of Unni Krishnan vs State of AP AIR 1993, SC held that right to education for children between 6 to 14 yrs of age is a fundamental right as it flows from Right to Life. After this decision, education was made a fundamental right explicitly through 86th amendment in 2002.

Art. 24: Children have a fundamental right against exploitation and it is prohibited to employ children below 14 yrs of age in factories and any hazardous processes. Recently the list of hazardous processes has been update to include domestic, hotel, and restaurant work.
Several PILs have been filed in the benefit of children. For example, MCMehta vs State of TN AIR 1991, SC has held that children cannot be employed in match factories or which are directly connected with the process as it is hazardous for the children.
In the case of Lakshmi Kant Pandey vs Union of India, AIR 1984, J Bhagvati has laid down guidelines for adoption of Indian children by foreigners.

Art. 45: Urges the state to provide early childhood care and education for children up to 6 yrs of age.

For older citizens
Art 41: Urges the state to give assistance in the matter of employment, education, and public assistance in cases of unemployment, old age, sickness.

Reservation as a constitutional right
Indian constitution envisages a state where everybody is treated equally. Even in the preamble, the constitution strives to provide equality in opportunity. Further, the constitution adopts the concept of "like should be treated alike" as the basis of equality. Thus, it is very clear that the constitution guarantees special provisions to be made for the betterment of special classes of citizens. In Part XVI, the constitution has laid down several articles that provide preferential treatment to backward classes.

There can be several ways through which the condition of backward classed can be improved and reservation is one such way. So it can be safely said that although reservation is not guaranteed by the constitution or it is not a constitutional right but it is certainly protected by the constitution as a mechanism to uplift the underprivileged classes.

Critical Analysis and personal view
In my view, reservation, in principle, is an effective means of improving the condition of socially and economically backward classes. Further, since wrongs were done against SC/STs in the name of caste system, I believe that they should be meaningfully compensated. However, it must be alienated from politics for truly benefiting these classes. It must be ensured that this benefit goes to the really deserving people and not to those who have already availed its benefit. The objective of reservation should be to bring an end to reservation itself by uplifting every one of the backward classes.

Therefore, I think that the judgement delivered in the case of Indra Sawhney vs Union of India by the SC in 1993 is a very fair one because it balances the amount of compensation with general efficiency of administration by capping reservation to 50%. It also ensures that the benefits are not hogged by the already empowered people (exclusion of creamy layer).



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Q. Discuss the ameliorative measures adopted by the govt. of India and govt. of the states for SCs, STs, and other backward classes under art 46.

Central and state governments have adopted a lot of measures for the betterment of SCs, STs, and oBCs in accordance with the special provisions given in the constitution. They are as follows:

Civil Provisions

The foremost of all measures is the enactment of Untouchability Removal Act which was later on renamed to Protection of Civil Rights Act 1955. This act tries to abolish untouchability and ostracism of SCs and STs from the mainstream society. It allows for punishment for any one who practices or preaches untouchability, or prevents any person from entering a public place such as a temple, hotel, shops, hospitals, schools, hostels. It forbids the practice of boycott or insult of any person from society on the grounds of untouchability. It prohibits anybody from restricting trade - buying/selling from/to any person on the grounds of untouchability.
Section 6 of this act stipulates a minimum of 1 month to a maximum of 6 months of imprisonment and a fine of 100 to 500 rupees.

In case of State of Karanataka vs Appa Balu Ingle  AIR 1993, SC upheld the conviction of the respondents for restraining the complaining party by show of force from filling water from a public well because they were untouchables.

Abolishment of forced labor .
Reservation in legislature.

Educational Provisions
Reservation in educational institutes. Relaxation is qualifying marks. Establishment of primary schools in remote areas. Relaxation in school and college fees. Mid day meal schemes for poor children going to school. Establishment of hostel facilities. Training and coaching institutes. Free stationary supplies. 

Welfare Programs
Establishment of ministries for the welfare of SC/STs. SC/ST cells in police stations. Several programs on national and state level such as - Janani Suraksha Yojana, Deendaya Upadhyaya Yojana.

Housing Programs
Under Kutir Yojana, cheap housing is provided to SC/STs. They are given land pattas for housing as well.

Fiscal Measures
MP has a department of National Backward Classes Financial Development Corporation that provides various kinds of loans and other financial assistance to people of backward classes. Some occupations under which loans are given are:
  • Agriculture Loans
  • Small Scale, Handicrafts, and other polytechnical loans.
  • transportation.
People can choose any of the above occupations and get a loan. They can get Term loan (max. 5 lac), margin money loan ( max. 2 lacs), micro loan ( max 25000). These loans are available at a very low rate.


Q 1. What do you understand by compensatory discrimination? How successful has it been in India? Is it against equality?