Project topic:

Protective discrimination in India:A critical study

By
Ankit kumar
(Roll no-2515,1st semester)
Submitted to:
Dr. Shakil Ahmed

This final draft is submitted in partial fulfilment of project in Sociology

Date 20 OCTOBER 2021

 Contents
1.Aims & Objective 4
2. Declaration 6
3.Acknowledgement 7
4.Introduction 8
5.Protective Discrimination For Backward Classes 8
6.Previous protective discrimination Laws & provisions 9
7.Is it a permanent right? 10
8.Creamy layer Concept 11
9. Important case Laws 11
10 .Conclusion 12
11. Bibliography 13
 AIMS AND OBJECTIVES

The broad objective of the project is to understand that the

preventive discrimination prevailing in India.

SCOPE AND LIMITATION

 The researcher has limited time for the project. The background details is
necessary for
having a bird's eye view of the particular topic and it gets developed only by
effective and
extended reading over a long period of time. But the required materials are not
available

through the e-resource access of our library. The researcher has a restricted
access to the
various reports and other form of relevant literature but a huge portion of
require literature is
not available at the researcher's disposal due to limited access and paucity of
time as well.

Hypothesis
1.To establish that still caste discrimination is
prevailing in India.
2.There is need of continuing the reservation policy
in India.
 Declaration

I, Ankit Kumar do hereby declare that the project titled " Protective
Discrimination in India:A Critical Study”
submitted to Chanakya
National Law University is partial fulfillment of requirement of award of degree
in
undergraduate in law is a record of original work done by me under the
supervision and guidance of Dr.Shakil Ahmed, Chanakya National Law University
.
 ACKNOWLEDGEMENT

I would like to take this opportunity to express my pleasure of gratitude and deep regard
to Dr.Shakil Ahmed, Faculty of Sociology for his

exemplary guidance, valuable feedback and constant support through the completion of
the project.
Next, I would like to convey my deepest regards to the Vice Chancellor and the

Administrative staff of Chanakya National Law University who helped the project in high
esteem by providing reliable information in the form of library infrastructure and online-
databases at the time of need.
I would also like to give my sincere gratitude to all my friends and colleagues who gave
constant motivation and without which the research would be incomplete. Their part is

also highly solicited Finally, I thank the almighty who gave me the courage and stamina
to confront all the hurdles during the making of this project. These words are not
sufficient to express the incredible help leaded by people to finish this project. I once
again, who-heartedly thank all the people who helped me finish this project with the best
outcome
 Introduction & meaning of protective discrimination
India has had a long past of oppression and suppression. Certain communities have always
been discriminated against, whether it be in the puranic times, the era of monarchy or
British rule. These communities were exploited for long and their sufferings have been
silenced by the influential non-discriminated people of the society. They were so
underprivileged that they lost all financial authority and were forced to live a life of poverty
for generations after generations.

The makers of the Indian Constitution dreamt of a society where everyone is treated as
equal and no one is exploited based on their colour, caste, sex or race. This dream still
remains a dream for many. Thus, the makers of the Constitution applied their judicial mind
for an affirmative action that would potentially accomplish the desired object. It was the
idea of protective discrimination that added a new dimension to a great socio-economic
manoeuvre.

The policy of protective discrimination is a way to ensure social justice in society. The
scheduled castes, scheduled tribes, other backward classes, and women are the most
exploited and discriminated groups in Indian society, and the Constitution hence aims at
making their lives better by providing them with some special privileges.
These actions are justifiably enshrined in the Constitution of India as “Protective
Discrimination”. Protective Discrimination as an idea has been practised by many civilized
nations including developed nations like the USA because of their dark history of racial
discrimination.

In India, these special provisions for the downtrodden and exploited are provided as
reservations or quotas in educational institutions, jobs, and parliamentary privileges and it
commands the legislatures to legislate special provisions for their overall advancement

Need for protective discrimination for backward classes in India

The Supreme Court in Marri Chandra Sekhar Rao v. Dean Seth G.S Medical College (1990)
held that equality must be a living reality for the people. Those who are unequal in status
and opportunity cannot be treated by identical standards.
 To add to the problem, Indian society discriminates against some communities most
prominently based on the institution called the caste system. The caste system is a deep-
rooted social problem that dates back centuries ago. Even though the Constitution
prohibits discrimination against these groups but, the legal position apart, the caste system
is still the order of the day and this is the sad undeniable truth. Lower castes have to serve
the upper castes without having any say and grievance redressal mechanism. This
inhumane and barbaric condition perpetuated for centuries, till “we the people” realised
the malady impelling the legal mechanism to make laws, suggest amendments and make
the lives of these people better and try to bring them to the same pedestal that all of us
stand on.

Previous protective discrimination laws and provisions in India

Some of the constitutional provisions which aim at positive discrimination are:

Article 17: Abolition of “untouchability” and making its practice in any form a punishable
offence.
Article 46: Promotion of educational and economic interests.
Article 16 and 335: Preferential treatment in matters of employment in public services.
Articles 330 and 332: Reservation of seats in the Lok Sabha and State Assemblies.
Two Constitutional Amendments have been incorporated into Article 16(4). The 77th
Amendment to the Constitution has taken effect, allowing Scheduled Castes and Scheduled
Tribes to be given preference in promotions. As a result, Parliament has erased the premise
that an appointment does not imply promotion, as defined by the Supreme Court in Indira
Sawhney, by modifying the Constitution. The 81st Constitutional Amendment also brought
changes in Article 16(4)(B), which states that “Nothing in this article shall prevent the State
from considering any unfilled vacancies of a year which are reserved for being filled up in
that year in accordance with any provision for reservation made under clause(4).”
Article 16(6) was introduced by the Constitution (One Hundred and Third Amendment) Act,
2019, which states that “No government authority or any other person or authority shall
prohibit the state from making any laws related to the reservations of economically weaker
sections; The laws made for their reservation should not exceed ten percent.”

The Karachi Resolution’s socio-economic provisions influenced the Constituent Assembly’s

writing of Part IV of the Indian Constitution, the Directive Principles of State Policy. The
Congress believed that to overcome mass exploitation, political freedom must also involve
actual economic freedom for the starving millions.
 Article 15(3) of the Constitution allows the state to make special laws for women and
children and Article 15(4) allows the state to make laws and provisions for the socially and
economically backward classes for their improvement. Article 15(5) enables the state to
make reservations in educational institutions.

Further, Articles 15 and 16 deal with reservations for these economically and socially
backward classes for their upliftment.

Article 336 provides for the protection of rights of the Anglo-Indian Community in
appointments in various sectors including railways, postal services, and customs.

Reservation and protective discrimination – is it a permanent right granted to the

backward classes?
Who can disagree that working for the government is both a luxury and an opportunity for
any underprivileged individual to advance economically and socially? Apparently, in light of
this crucial element, the demands of members of the scheduled castes, among others, will
be considered compatible with the maintenance of administrative efficiency, in the making
of appointments to services and posts concerning the activities of the union or a state,
according to Article 335 of our Constitution.

The Supreme Court in All India Anna Dravida Munnetra v. Union Of India (2020) refused to
accept a series of petitions demanding the implementation of a 50% reservation for “Other
Backward Classes (OBCs)” in state-funded seats in the all-India quota for UG and PG medical
courses in TamilNadu, stating that “reservation is not a fundamental right.” The Apex Court
has held multiple times this year in a series of decisions that reservation is not a
fundamental right.

Hence, the right to receive reservation in government offices, educational institutions and
various other organisations is at the discretion of the law-making bodies and not a
permanent right that people from the socially and economically backward sections of the
society can demand.
 Creamy layer concept
In Indian politics, the term “creamy layer” refers to some members of a backward class who
are highly progressed socially, economically, and educationally. They are the most forward-
thinking members of that backward class, as forward-thinking as any other forward-
thinking members. The word was first used in the Indra Sawhney case (1992) to refer to the
reservation of jobs for certain groups in 1992.

The classification for differentiating the creamy layer from that of the rest of the
community is the family income. This classification is valid and applicable for the OBC
community only. Those from scheduled castes (SCs) and scheduled tribes (STs) are
exempted from this classification, and always receive the benefits of reservation, regardless
of family income.

This has always been an issue of debate. People who do not obtain such reservations, as
well as many others, believe that even the ST-SC community should be included in the
creamy layer policy before receiving any additional benefits such as reservations. What
they fail to consider is the constant stereotype and mental agony that accompanies them to
date because of the prevailing casteism in Indian society. This only pertained to
reservations in promotion; the rest remained unchanged. The federal government filed a
new appeal at the Supreme Court in December 2019.

Important case laws related to protective discrimination

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

In Triloki Nath v. J & K State (II) Shah (1973), the bench stated that ‘a test primarily based on
caste, community, race, religion, sex, descent, place of birth, or residency cannot be used to
determine whether a section represents a class for the purposes of Article 16 (4) since it
would directly violate the Constitution.’
In A. Peeriakaruppan, etc. v. State of Tamil Nadu (1970), the Supreme Court stated that ‘A
caste has traditionally been considered a social group. If an entire caste or community is
socially, economically, or educationally backward at any given period, that caste or group is
considered a backward class. This is because they form a class, not because they are
members of that caste or group.

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

Conclusion
The Constitution of India, through various laws and provisions, aims at eliminating
disparities between different sections of the society and providing equality of status and
opportunity to all. In India, there is a growing discussion about positive discrimination. A
democracy, on the other hand, is not restricted by logic or ethics because it is
fundamentally a social creation. A nation cannot flourish if a significant portion of its
population falls behind in the development race and, as a result, is unable to benefit from
the equality of opportunity granted to all Indian citizens as a fundamental right.

The long-disputed challenge of preserving the rights of both historically oppressed and
socially and economically disadvantaged individuals, as well as the privileged section, has
long been debated. Because of its hierarchical hierarchy and brutal caste system, India has
a grim history of oppression and violence. Even though the country and we Indians have
been independent for seventy-four years and even as we Indians enter the age of
liberalization and globalization, the social system and mindset of the masses have remained
the same.

Understanding the very nature of the society, there should be different laws, applying
differently in different places and circumstances. Application of the same laws parallel to
everyone irrespective of socio-economic differences may result in violation of the spirit of
the right to equality.
Henceforth, protective discrimination, as a constitutional tenet for protection and
preservation of the rights of scheduled castes, scheduled tribes, and other backward classes
of citizens as well as women, is highly recommended in our society. Let us hope that the
authorities in charge rise to the occasion and ensure an accelerated intake of these people
into government services and posts by closing all loopholes.
 Bibliography
1. https://www.tribuneindia.com/news/comment/protective-discrimination-layer-
by-layer-165112
2. https://www.aequivic.in/post/aijacla-protective-discrimination-under-the-
constitution-of-india
3. http://www.legalservicesindia.com/article/846/Protective-Discrimination.html
4. http://www.legalserviceindia.com/legal/article-4614-protective-