CASIRJ Volume 6 Issue 9 [Year - 2015] ISSN 2319 – 9202

Protective discrimination in India: Constitutional position, need and

impacts

Maniram Sharma
Research Scholar

Department of Political Science

Dibrugarh University

Dibrugarh, Assam

email id: sharmamaniram964@gmail.com

Abstract

Any democratic society faces the challenge of harmonizing two essentially contradictory political
concepts- first, equality before law irrespective of religion, caste, creed, race and gender and second, social justice
at the cost of the same commitment for equality before the law. In India, large numbers of people have been
experiencing social discrimination and alienation through centuries on account of its peculiar social setting and the
institution of the caste system. The discrimination suffered by the oppressed sections of the society over a long
period of time has led to the concept of protective discrimination to safeguard their interests. The main reason
behind protective discrimination is to provide the necessary facilities to the deprived sections and to bring them to
the mainstream society on equal footings with others. Equality before law is the most precious democratic right of
an Indian citizen but by merely ensuring equality of opportunity to all in respect of educational and employment
opportunity, we may be ignoring the special problems of some backward sections of our society who have been
suffered from social, political, economic, educational deprivation for hundreds of years. It is a well known dictum
that there is equality only among equals. To equal unequals is to perpetuate inequality. When we allow weak and
strong to compete on equal footing, we roll the dice in favor of the strong. As a matter of fact, unless adventitious
aids are given to the under privileged people, it would be impossible to suggest that they have equal opportunities
with the more advanced people. It is the real justification for the demand of social justice that the underprivileged
citizens should be given a preferential treatment.
The present paper is attempting to throw light on the logic behind the protective discrimination
mechanism sponsored by Indian constitution and parliament. Attempts have also been made to assess the impacts
and present need of this mechanism in the contemporary socio- political system of India.
Key words
Reservation, Under privileged, Backwardness, Marginalized, Inequality, Scheduled caste,
Equality, Justice, Preferential, Perpetuate.
Introduction

Our society has always been full of inequalities. It has been a caste ridden, stratified
and hierarchical society where people are grouped on the basis of caste in which they fall. Some lowerly placed
segments of society on caste footing have been denied the bare minimum rights and privileges of human beings.
Their educational, wages, living conditions and social status have been dictated by the whims of upper strata of
society reducing them to the level of destitution. The entire social and political space was taken away from the lower

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caste people and which perpetuate their backwardness and threw them on the mercy of the nature and destiny. In a
society compartmentalized on caste basis, upper castes controlled the levers of power enabling them to run their
whips, prejudicial to the interests of lower segments of the society. Lower castes had to serve the upper castes
without having any say and grievances redressal mechanism. This inhumane and barbaric condition perpetuated for
centuries till the framers of our constitution realized the urgency of the situation and came forward with protective
discrimination policy.1
Protective discrimination is the policy of granting special privileges to the downtrodden and
marginalized sections of society. Women are given extra emphasis. Protective discrimination is affirmative action
and the most visible in both the United States of America and India, where there has been a history of racial and
caste discrimination. The practice is the most prominent in India, where it has been enshrined in the constitution and
is institutionalized. The need to discriminate positively in favor of the socially underprivileged was felt for the first
time during the wider national movement. It was Mahatma Gandhi, himself a devout Hindu and a staunch believer
in the caste system, was the first leader to realize the importance of the subject and tried his level best to invoke the
conscience of the upper caste to this old social malady of relegating whole community to the degrading position of
untouchables. Gandhi wanted to make the national movement as wide as possible and the pathetic conditions of
marginalized communities pained him a lot. He dreamt of eliminating social barriers of the low caste people and
also to secure their whole hearted contributions to liberate the country..
Protective discrimination as amalgamation of social equality and social justice
Any democratic society faces the challenge of harmonizing two essentially contradictory
political concepts. Such society tries to maintain social equality among its members. Present political democratic
societies are based on the law of equality and equality before law requires that no one can be discriminated on the
basis of religion, caste, creed, race, gender, place of birth, social status etc. Everyone should be given equality of
opportunity to move ahead in the path of progress and development without being hindered by others. Such
democratic societies cannot skip from their welfare obligations. They have to maintain social justice. Social justice
is meant to create such a social order where nobody should be left at the mercy of others. When equality of
opportunities are given, the weaker and marginalized people cannot compete with strong and prosperous people to
share societal resources. Maintenance of social justice needs some compromise with social equality in the favor of
the weaker sections of society. In india, large numbers of people have experienced social discrimination through
centuries on account of its peculiar institution called the caste system. Efforts have been made as per the constitution
and parliament to provide redress for these under privileged sections through the policy of reservation or quotas for
them in the jobs, seats in educational institutions and legislatures and in government’s aids, loans and other
development assistances. The discrimination and alienation suffered by the oppressed sections of Indian society
caught the attention of constitution maker who himself had been a dalit of mahar caste, consequently, he supported
the concept of protective discrimination to safeguard their interests. The main reason behind protective
discrimination is to provide the necessary facilities to the deprived section and to bring them to the mainstream
society. Two segments of Indian society viz. the non tribal who were of lower caste were named as scheduled castes
and those with tribal features were named as scheduled tribes. These two classes were placed beyond the bounds of
the larger society, the scheduled tribes on account of their isolation in particular tribal localities away from
mainstream society and the scheduled castes on account of the segregation imposed on the by the rules of the purity
and pollution.
There were certain clauses in the constitution of India which aim at providing equality of
opportunity to all by prohibiting discrimination and to remove disparities between privileged and underprivileged.
The constitution of independent India which largely followed the pattern of the government of India act. 1935 made
provisions for protective discrimination in favor of the scheduled castes and scheduled tribes which constituted
about 23% of the divided India’s population.2
Besides reserving parliamentary seats for them, they were given advantages in several other
respects such as admission to schools and colleges in preferential measures, jobs in the public sectors to increase
their strength in organized sector of employment market, various pecuniary benefits for their overall socio-

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economic development, and so on. The constitution, for the sake of benefitting the socially backward classes of
Indian society and to bring them at par with other relatively better off classes, guaranteed the funadamental right of
equality of all citizens before the law but it also categorically laid down that nothing in the constitution shall prevent
the state from making any special provision for the advancement of any social and educationally backward classes
of citizens or for the scheduled castes and the scheduled tribes. The motive behind categorically mentioning
preferential treatment for depressed classes was to preserve the spirit of social justice.
Logic behind protective discrimination policy
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. When we allow weak and strong to compete on
equal footing, we are rolling the dice in fovor of the strong. as a matter of fact, unless adventitious aids are given to
the under privileged people, it would be impossible to suggest that they have equal opportunities with the more
advanced people. It is the real justification for the demand of social justice that the under privileged citizens should
be given a preferential treatment. Equality of opportunity principle requires bringing all the communities and
sections of Indian population on real equality and capacity level and just due to this fact they have to be
compensated positively by cutting shares from advanced categories of people.
Constitutional provisions to make the life of depressed classes better
Untouchability has been the prime stigma of Indian depressed classes and so the
constitution has abolished it and states that its practice in any form is an offence. Article 15(1) of the constitution
provides that: (1) the state shall not discriminate against any citizen on the grounds only of religion,
race, caste, sex, place of birth, or any of them.
(2) no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, restriction or condition with regard to -
(a) access to shops, public restaurants, hotels and places of public entertainment, or
(b) the use of wells, tanks, bathing Ghats, roads and places of public resort maintained
wholly or partly out of state funds or dedicated to the use of the general public.
According to article 16 (1) there shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the state. Article 16 (2) provides: no citizen shall, on grounds
only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated
against in respect of any employment or office under the state. In addition, article 16(3) empowers the parliament to
take special protective measures for the people belonging to backward classes. Article 17 of the constitution declares
in unequivocal terms about the abolition of untouchability. It provides, ‘ untouchability is abolished and its practice
in any form is forbidden :the enforcement of any disability arising out of untouchability shall be an offence
punishable in accordance with law.
The constitution again provides for the abolition of untouchability in the directive principles of
state policy. The constitution makers prescribed these objectives after paying due consideration to the economic
potential of the country. These directives were suggested as a part of the government policy so that india could
achieve the broad objective of a welfare state. Much work has been done by the central as well as the state
government according to the formulation of the provisions under the directive principles of state policy. For
instance, article 36 states, ‘ the government will develop the economy and educational interests of the weaker
classes, especially scheduled castes and scheduled backward classes, with special precautions and will protect them
from social injustice and all kinds of exploitation and article 46 provides that the state shall promote with special
care the educational and economic interests of the weaker sections of the people and in particular of the scheduled
castes and the scheduled tribes and shall protect them from social injustice and all forms of exploitation. 3
There were provisions in the constitution for creating special ministries for the depressed class of

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people. Article 164 of the constitution provides for special ministries for the depressed classes in the state of
undivided Bihar, Madhya Pradesh and Orissa, there shall be a minister in charge of tribal welfare who may in
addition be in charge of welfare of the scheduled castes and backward classes or any other work.
There are provisions for the reservation of seats in the house of people. Article 330 and 352
provide: article 330 (1): seats shall be reserved in the house of the people for:
(a) scheduled castes
(b) scheduled tribes in the tribal areas of assam; and
(c) scheduled tribes in the autonomous districts of assam.
Article 330 (2) : the number of seats reserved in any state for the scheduled castes or the scheduled tribes
under clause (1) shall bear, of as nearly as may the same proportion to the total number of seats allotted to that state
in the house of the people as the population of the scheduled castes in the state or to the scheduled tribes in the state
or part of the state as the case may be in respect of which seats are so reserved, bears to the total population of the
state. According to article 352 (1) seats shall be reserved for these scheduled castes and scheduled tribes, except the
scheduled in the tribal areas of Assam in the legislative assemble of every state specified in part A or B of the first
schedule. Article 352: seats shall be reserved also for the autonomous districts in the legislative assembly of Assam.
Article 335: the claims of the members of the scheduled castes and the scheduled tribes shall be taken the
consideration consistently with the maintenance of efficiency of administration, in the making of appointments to
services and posts in connection with the affairs of the union or of a state. Further article 338 states: (1) there shall
be special officer for the scheduled castes and scheduled tribes to be appointed by the president. (2) it shall be the
duty of the special officer to investigate all matters relating to the safeguard provided for the scheduled castes and
scheduled tribe under this constitution and report to the president upon the working of those safeguards at such
intervals as the president may direct and the president shall cause all such reports to be laid before each house of
parliament.
The constitution of India also provides for the constitution of a commission by the president of
india. Article 340 (1) states, ‘ the president may by order appoint a commission consisting of such person as he
thinks fit to investigate the conditions of socially and educationally backward classes within the territory of india
and the difficulties under which they labor and to make recommendations as to the step that should be taken by the
union or any state to remove such difficulties and to improve their condition and as to the grants that should be made
for the purpose by the union or any state and the conditions subject to which such grants should be made, and the
order appointing such commission shall define the procedure to be followed by the commission.
Who are scheduled caste (SC) people
The scheduled castes consists of the groups that are considered to be unapproachable and
untouchables according to the Hindu social order. The functioning of this unit of Hindu social order was made
according to the syntax of purity, pollution, devising a socio- economic framework with a religious and political
sanction behind it. SCs have been spatially segregated in the villages and towns and engaged in occupations with
negative prestige and had no role in the power structure of the locality. The scheduled caste is the legal and
constitutional name collectively given to the groups which have traditionally occupied the lowest status in Indian
society and the Hindu religion which provides the religious and ideological basis for an untouchable group, which
was outside the caste system and inferior to all other castes. The scheduled castes are not homogenous group and are
divided into many castes and sub-castes, as well as by language and geography.
Who are scheduled tribe (ST) people
Article 366 (25) defines scheduled tribes as such tribes or tribal communities or parts of or groups
within such tribes or tribal communities as are deemed under article 342 to be scheduled tribes for the purpose of
this constitution. Scheduled tribes are those people with tribal identities and culture who are backward than other
fellow tribal people. Though nearly all tribal people are backward then urban dwellers and high ranking castes but
some sections among them are severely backward and still live primitive life.
Protective discrimination to women
The constitution of India is one of the most progressive documents so far as the legal rights of the

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women are concerned. Besides, the fundamental rights, the constitution of India has made special provisions for
women under the directive principles of state policy, particularly in articles 38, 39, 42 and 44. Article 38 (2) states
that ‘ the state shall, in particular strive to minimize the inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only amongst individuals but also among groups of people
residing in different areas or engaged in different vocations. This article ensures equality of men and women in
probably every area of daily life. Article 39(a) specifically provides, ‘that the citizens, men and women equally,
have the right to adequate means to livelihood’. The constitution under article 42 made specific provisions for just
and humane conditions of work and for maternity relief.
The reservation policy for the purpose of providing protective discrimination
Our constitution guarantees justice and equality of opportunity to all its citizens. It also recognizes
that equal opportunity implies competition between equals and not unequals. Recognizing the inequality in our
social structure, the makers of the constitution argued that weaker sections have to be dealt with on a preferential
footing by the state. A special responsibility was thus placed upon the state to provide protection to the weaker
sections of society. Accordingly, the constitution provided for protective discrimination under various articles to
accelerate the process of building an egalitarian social order. Thus preferential treatment for the depressed classes
including reservation of seats in parliament, high positions should not be understood as an act of magnanimity on the
part of the political elites at the national level, rather than a strategy to give them a share of power in politics and
administration and to uplift them socially and economically.
Initially, the percentage of reservation in 1950 constitution was 12.5 percent for SCs and 5 percent for STs
but these percentages were subsequently enhanced in 1970 to 15 percent for SCs and 7.5 percent for STs. The
reservation was provided in jobs, admission in colleges and universities, central and state legislative assemblies.
Later it was extended to public undertakings and nationalized banks. Nearly every Indian state enacted laws in one
point of time or the other to provide reservation to the SCs and STs, in the services under their control and
jurisdiction. The governments also provided certain other concessions on reservation mode such as reservation in
promotion and many more facilities.
The reservation facility for the weaker section was attempted to be extended to judicial
appointments in the Supreme Court and high court was revealed way back in the January month of 1999. It was
mentioned in a confidential file of the president with his official stamp. The news of extending reservation system to
higher judicial appointments created fierce debate between the supporter of meritocracy and protective
discrimination. In this regard the chief justice along with other judges of supreme court and many jurists of high
courts showed total opposition to the proposed reservation in judicial appointments particularly in the apex level.
This incident created a fresh debate on the issue of reservation policy. If the president of india did not see any harm
in applying reservation system in judiciary than there was no question of its not being applied in the armed forces
and formation of cabinet. On the other hand , if reservation policy was so harmful in itself as per the views of the
chief justice and other judges of supreme court and high courts than another question arises about accepting 27
percent reservation quotas for OBC in government jobs, educational institutions etc., by the supreme court in its
historical judgement.
The arguments centering reservation policy have many dimensions and motives and this
has opened new direction to Indian political system as well as posing serious challenges for the society and the
economy.

Criticism against the reservation policy

Numerous questions have been raised from different quarters for a long time about the
rationale behind the reservation policy. One argument is that these should have been discontinued ten years from the
coming into force of the constitution. By extending the term every decade, we are going against the wishes of the
constitution makers. The reservation policy is as per this argument is to derecognize merits and to deprive the more
qualified. The entire country is backward and so the justification for special measures for any particular sections
among the backwards does not arise. The second argument given in this regard is that the reservation policy has seen

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fifty years of its ineffective effects and it could not improve the conditions of the sections for those it was meant
originally. Only very few people have been benefitted from it and at present also they are cornering the advantages
coming with the reservation policy. The needy and targeted segments are left behind. The third argument is that this
reservation policy is twisted to obtain political advantages by vested interest groups and due to this political sphere
is getting polluted. One view is that since the objects of reservation has not been achieved; it should be continued for
a few more decades. The other view is that it is the right time to phase out the reservation slowly. This can be done
either by removing the creamy layers or by letting the reservation percentage taper off to a vanishing point. In fact,
this process should have been initiated much earlier. In the era of competition and respect for merit and talent, the
reservation policy is keeping India backward and is making India a hub of lazy and incompetent creatures putting
barriers on the path of development and progress of the nation. If our country had become a caste free society even
before twenty-first century then it was much better. The condition of so called underprivileged sections in India are
the same even crossing so many decades after independence and this show the lacunae and loopholes in the
reservation system itself.4 An another view against this system is that it is working in the opposite direction to its
main objective as it is further creating gulf in the society and compartmentalizing citizens on caste term. It is
demarcating the society and the logic to uplift one section of society at the cost of others is not fair. Instead of this
there should be equal opportunities for all. Talent and wisdom are not depending on the caste of the people and
sooner or later a meritorious one reaches his/ her destination even without any outside support structure. Such
supports only make a society full of parasitic creatures incapable of doing any positive good to the society and
country.
Conclusion & Critical assessment
Theoretically it is indmissible and practically difficult to scrap the policy of reservation.
When this policy was executed the motive behind was pure and as the motive has not been satisfactorily fulfilled yet
due to immaturity and lacunae in Indian political system. Some more years, it should be extended with required
modifications and vigilance to get the best possible results. On the practical side it is nearly impossible to scrap the
policy suddenly due to many reasons. That is why it is pertinent to extend the reservation policy to needy groups.
Though scraping is not possible and recommended but it has to be scientific and rational as far as possible. The
reservation policy was thought to be based on the caste footing to ameliorate the conditions of the deprivation and
marginalization of the lower castes but over the years, this caste question degraded the very foundation of the Indian
society and polity.5 In the present era, caste should not determine one’s life chances rather space should be provided
to merits and talents. To make reservation policy more affective and deliver desired results , some recommendations
are listed as under: 1) in the present era, income of a person determine his backwardness rather than his caste, so
determining backwardness to extend reservation should be income or economic potentials of a persons. 2) Over the
years many sections in the previously backward SCs, STs and OBCs groups have attained satisfactory advancements
in their standard of living and economic, political and social spheres and despite of this, they are the real
beneficiaries of reservation policy depriving other real disadvantaged sections of society. So the concept of creamy
layer should be applied to all the communities of SCs, STs, and OBCs and they should be kept out of reservation
related benefits. 3) Due to the reservation policy, the society, economy and industry have been deprived of getting
required skills and talents and so the reservation should be restricted only to the first generation beneficiaries. The
candidates whose parents have already availed reservation facilities in securing a job should not be given the facility
again. This will help in stopping the limited resources of the country to get exhausted.
There is a serious need for reconsideration of the reservation policy in india because the
reservation policy compromises with the efficiency of our country’s workforce. Indian political system and the
economy have been suffered a lot due to this reservation policy based on false criteria of caste. This has paved way
to the vested interests to serve their selfish motives at the cost of the interests of the Indian society and state. This
policy has become one of the most prominent and ever burning issues for the political parties and politicians to
muster votes and to strengthen their positions in caste divided society. The reservation policy and system is like a
fertile field where the plants of corruption and inefficiency grow poisoning slowly the entire society and its future.
The corrupt and shrewd politicians are efficient to fuel fires on the issues of castes and reservation and polarize the

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society on caste terms and create conditions of chaos, disorders and law and order problems. The reservation policy
based on caste term is hindering india’s growth, development and competency in all respects. Due to this bad system
of reservation policy high ideals enshrined in the preamble of India have remained unrealized and remained only
trivial words with no practical utilities. By reserving one category against another created a feeling of division and
demarcation in the society with competitive groups acting like enemies and the notion of unity of society is
threatened and bleak. The process of reservation should aim at and based on the aspect of filtering out real deprived
individuals and to bring them to justice.6
Over the years the reservation system has given a distorted image to india and due to this , the
public sector is rendered inefficient and corrupt vis- a –vis the private sector. The reservation given on caste term is
not at par with a civilized world norms and values and it is against the notion of equality and development.
Reservation system, if cannot be scrapped outright due to practical implications, can be remodeled and should be
newly planned, executed and periodically monitored and assessed. The need of the hour is not to let the issue of
reservation and related activities absorbing the much needed limited resources of the country and also not enables it
to create further gulf, chaos and inefficiencies in the Indian society.

References
1. Fadia, B.L, Indian Government and politics, Sahatya Bhawan Publications, Agra, 2008, pp. 674- 680.
2. Galanter, Marc, Competing Equalities, Delhi, Oxford India paper back, 1984, pp. 7-12.
3. Shandanshiv, DN, Reservation for social justice, Bombay, current law publisher, 1989, pp. 19-27.
4. Maheswari, S.R., The Mandal commission and Mandalisation: a critique, New Delhi, Concept
publishing co., 1991, pp. 10-15.
5. Burman, B.K. Roy, Beyond Mandal and after, Mittal Publication, New Delhi, 1998, pp. 39-44.
6. Mahajan, Gurpreet, Democracy, difference and social justice, Oxford University press, Mumbai, 1998,
pp. 491-98.

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