http://www.morungexpress.com/express_review/40637.htmlRIGHT TO EQUALITY: AN IMPORTANCE OF AFFIRMATIVE ACTION/RESERVATION
T. Lakiumong Yimchunger
Women folk listen to a leader during a mass rally at Clock Tower
junction, Dimapur. A legal provision related to the reservation of
seats for women in the Parliament and State Assemblies was introduced
during Rajiv Gandhi's tenure as the Prime Minister of India when the
Panchayati Raj Act, 1992 (73rd and 74th Constitutional Amendment) came
into effect granting not less than 33% reservation for women in the
Panchayati Raj Institutions or local bodies. (Morung File Photo)
Introduction
Indian constitution guarantees certain fundamental rights and
provisions to its citizens through which they can live as human being
with dignity and meaning of life. Part-III of the Indian constitution,
containing Articles 12 to 35 provide for different kinds of
fundamental rights as mentioned below: 1. Definition of State (Article
12). 2. Laws inconsistent with or in derogation of the fundamental
Rights (Article13). 3. Right to Equality (Articles 14-18). Right to
Freedom (Articles 19-21). 4. Safeguards against Arbitrary Arrest
(Article 22). 5. Right against Exploitation (Articles 23-24). 6.
Freedom of Religion (Articles 23-28). 7. Cultural and Educational
Rights (Articles 29-30). 8. Right to Constitutional Remedies. The main
purpose of this paper presentation is to see and examine the
importance of the phrase, "Right to Equality" as categorized under
Articles 14-18 of our Indian constitution related to the provisions
and decisions made for affirmative action or reservation for the
depressed and marginalized sections of the people in India.
I. Right to Equality and Its Importance
The constitution of India has laid down certain provisions for the
welfare of deprived and marginalized sections of society with a view
to bringing the concept of "Right to Equality" into fruition having
made it access to such sections of society. Some of the Articles and
provisions of Indian constitution relating to the uplift of the
underprivileged and down-trodden sections of the citizens of India are
seen in the following: The preamble, Articles 38 and 46 of the
Directive Principles of State Policy, Articles 14, 15, and 16 of the
Fundamental Rights and Articles, 330, 331, 332, 333, 335, 338 and 340,
341, 342, and etc.
I.1. Equality before Law
Article 14- It provides for Equality before law and Equal protection
of laws within the territory of India. Article 14 of the Indian
constitution declares that 'the State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India.' It means that law treats equally all individuals
without any discrimination right from the top to the bottom. All
persons are treated equally in the equal circumstances.
The phrase 'equality before the law is of English origin' and 'equal
protection of the law' is taken from American constitution. Both the
phrases appear to be same, but they do not convey the same meaning.
The former has a negative concept towards having and showing of
special privilege in favor of individuals where as the latter has a
more positive concept implying equality of treatment in equal
circumstances (Sheoshanker vs. State of M.P. AIR., 1951 Nagpur 53).
However, in (State of West Bengal v. Anwar Ali Sarkar, AIR., 1952),
Patanjali Sastri, observed that "the second expression is corollary of
the first and it is difficult to imagine a situation in which the
violation of the equal protection of laws will not be the violation of
the equality before law. Thus, in substance the two expressions mean
one and the same thing."
I.1.1. Certain Exceptions to the Rule of Law
The above rule of equality is not absolute rule and following are
certain exceptions: 1. Equality before the law does not mean that the
powers of the private citizens are the same as the powers of the
public officials. 2. The rule of law does not prevent certain classes
of persons being subject to special rules. Thus, members of the armed
forces are controlled by military laws and so also, medical
practitioners are subjected to the regulations framed by medical
council of India. Article 361 of the Indian constitution affords
immunity to the President of India and the state Governors from the
institution of criminal proceedings against them resulting into
process for the arrest and imprisonment during their terms of office
with their official duties and functions. 3. Certain members of
society are governed by special rules in their professions, such as
lawyers, doctors, nurses, members of armed forces and police. Such
classes of people are treated differently from ordinary citizens.
I.1.2. Reasonable Classification
The legislature has a power to exercise its discretion and make
classification of the sections of people for the purpose of giving
protection without interference of the court. A guarantee of equal
treatment of persons in equal circumstances permits differentiation in
different circumstances. It is a fact that the principle of equality
does never mean that every law should have universal application for
all persons. A reasonable classification is important free from
arbitrariness and irrationality.
The following are important grounds for having reasonable
classification: (i) the classification should be founded on
intelligible differentia which distinguishes those who are grouped
together from the rest, and (ii) differentia should have a rational
relation to the object sought to be achieved. Relevantly and
contextually, reasonable classification depends on the object of
legislation, in a sense, one cannot talk exhaustively about the
circumstances or criteria, because our human society is dynamic that
always needs a change along with the changing outlook of the people.
I.2. Prohibition of Discrimination
Article 15 relates to the prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth. The clause (1) of
Article 15 mentions the prohibition of discrimination against any
citizens on grounds only of religion, race, caste, sex, place of birth
or any of them. The clause (2) of Article 15 prevents from making any
disability, restriction or condition against any citizen of India on
grounds of religion, race, caste, sex, place of birth or any of them
so as to deny in having access to the shops, public restaurants,
hotels and places of public entertainments or wells, tanks, roads
etc., maintained wholly or partly out of state funds or dedicated for
the use of public in general. The clause (3) of Article 15 empowers
the state for making special provisions for the protection and
advancement of women and children. The clause (4) of Article 15
enables the state to make special provisions for the advancement of
any socially and educationally backward classes of citizens or for the
scheduled castes and the scheduled tribes.
Clause (5) of Article 15 states that "nothing in this article or in
sub-clause (g) of clause (1) of Article 19 shall prevent the State
from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided
by the State, other than the minority educational institutions
referred to in clause (1) of Article 30."
I.3. Equality of Opportunity in matters of Public Employment
Article 16 deals with Equality of Opportunity related to public
Employment. Clause (1) of Article 16 lays down the general rule
guaranteeing that there shall be equal opportunity for citizens in
matters related to employment and or appointment to any office under
the state. Clause (2) of Article 16 provides the grounds basing on
which citizens should not be discriminated against each other with
regard to any appointment or office under the state. The clause (4)
of Article 16 lays down the provisions for the reservation of
appointments or posts in favor of any backward class of citizen, which
in the opinion of the state is not adequately represented in the
services under the State. The ruling of the Supreme Court in Indra
Sawhney's case became detrimental to the interest of the Scheduled
Castes and Scheduled Tirbes as it was confined to the initial
appointment only having excluded promotion. The constitution (Seventy
Seventh Amendment) Act, 1995, inserted a new clause (4-A) in Article
16 with a view to making reservation even in promotion. A new clause
(4-B) in Article 16 has been added by the constitution (81st
Amendment) Act, 2000 which empowers the State to look into backlog
reserved vacancies due to the non-availability of eligible candidates
and carry forward for a maximum period of three years. The Carry
Forward Rule was upheld as valid by the Supreme Court so long as the
actual reservation in a particular year does not exceed 50% except in
certain extra-ordinary situations.
II. Reservation: A Brief Historical Background
Reservation in Indian legal system goes along with quota system
whereby a percentage of seats are being reserved in the union and
state government departments and in all public and private educational
institutions, except in the religious/ linguistic minority educational
institutions, for the socially and educationally backward communities
and the Scheduled Cates and Tribes who in the opinion of the
Government are not adequately represented in these services and
institutions. India has a long history about the introduction of
reservation which started as early as 1882 with the appointment of
Hunter Commission so as to look into the demand made for free and
compulsory education for all along with proportionate representation
in Government Jobs headed by Mahatma Jyotirao Phule.
The demand for reservations of government jobs was made as early as
1891 with the agitation in the princely State of Travancore against
the recruitment of non-natives into public service in which qualified
native people were intentionally ignored and bypassed. In 1935, Indian
National Congress passed a resolution known as Poona Pact for
allocation of separate electoral constituencies for depressed classes.
In 1942, B.R. Ambedkar established "All India Depressed Classes
Federation" to support for the advancement and improvement of the
Scheduled Castes. B.R. Ambedkar fervently demanded reservations for
the Scheduled Castes in government services and education as well.
Kalelkar Commission was established in 1953 with a view to assessing
the living conditions of the socially and educationally backward
classes of citizens. The report was accepted as far as Scheduled
Castes and Scheduled Tribes were concerned. The recommendations for
OBC's were rejected.
Mandal Commission was established in 1979 with a view to assessing the
situations and living conditions of the socially and educationally
suppressed and depressed sections of society. The commission could not
have exact figures for a sub-caste, known as the Other Backward
Classes (OBC), and used the 1930 census data, further classifying
1,257 communities as backward to estimate the OBC population at 52%.
In 1980, the commission submitted a report, and recommended some
changes to the existing quotas, increasing from 22% to 49.5%. As per
2006, number of castes in backward class list reaches up to 2297 which
is the increase of 60% from community list prepared by Mandal
commission.
III. Decisions of the Court on Reservation
The constitution of India permits the state to adopt an affirmative
action or reservation as it deems necessary to uplift some sections of
people who are forced to live by compelling social structure in
degrading and inhuman conditions. In the light of this, Indian
Judiciary has pronounced some Judgments upholding reservations with
implementation. Numerous judgments with regard to reservations are
being modified subsequently by Indian parliament through
constitutional amendments. Mentioned below are the major judgments
given by Indian Courts:
1. In 1951, the Supreme Court pronounced that making reservation based
on caste as per Communal Award was in violation of Article 15(1)
(State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226), but
through 1st constitutional amendment, clause (4) of Article 15 was
enacted with a view to making this judgment invalid.
2. In (Balaji v. State of Mysore, AIR., 1963, SC., 649), the Supreme
Court held and affirmed that making reservation should not go beyond
50%.
3. In 1992, Supreme court in (Indira Sawhney & Ors v. Union of India.
AIR., 1993, SC., 477-The Mandal Commission Case) has examined the
scope and extent of Article 16(4) and the following are the decisions:
(i) Backward class of citizen in Article 16(4) can be identified on
the basis of caste and not only on economic basis.
(ii) Article 16(4) is not an exception to Article 16(1). Thus, the
Court had overruled its previous decision in (Balaji v. State of
Mysore, AIR., 1963 SC., 649) in which it was held that Article 16(4)
is an exception to Article 16(1). The Court approved the decision in
(State of Kerala v. N.M.Thomas, AIR., 1976) where it was held that
"Article 16(4) is not an exception of Article 16(1), but a facet of
the doctrine of equality enshrined in Article 14 and permits
classification just as Article 14 does."
(iii) Backward Classes in Article 16(4) are not similar to as socially
and educationally backward in Article 15(4). Thus, the Court overruled
the decision taken in Balaji case in which it was held that "the
backward class of citizens in Article 16(4) is the same as the
socially and educationally backward classes, scheduled castes and
scheduled tribes mentioned in Article 15(4)."
(iv) Creamy layer must be excluded from reservation.
(v) Article 16(4) permits classification of backward classes into
backward and more backward classes. Here, sub-classification between
backward classes and more backward classes declared as
unconstitutional in Balaji case was overruled.
(vi) A backward class of citizens cannot be identified only and
exclusively with reference to economic basis but also educational
backwardness. (vii) Reservation shall not exceed 50%.
(vii) There shall be no reservation in promotions; it is confined to
initial appointment only. At this point, the Court's decision in
(General Manager, Southern Railway v. Rangachari, AIR., 1962, SC., 36,
State of Punjab v. Hiralal, (1970) 3 SCC., 567, Akhil Bharatiya
Shoshit Karamchari Sang v. Union of India (1981) 1 SCC 246) holding
that Article 16(4) included promotions as well was overruled.
4. The Supreme Court delivered a unanimous judgment by 7 judges on
August 12, 2005 in the case of (P.A. Inamdar & Others v. State of
Maharashtra, AIR., 2005, SC., 3226) declaring that the State can't
impose its reservation policy on minority and non-minority unaided
private colleges, including professional colleges.
5. In 2005, 93rd Constitutional amendment provided a measure for
ensuring reservations to other backward classes and Scheduled Castes
and Tribes in Private Educational institutions. This effectively has
reversed the judgment of Supreme Court, pronounced on 12 August 2005.
6. In 2006, the Constitution Bench of the Supreme Court in (M. Nagraj
& Others v. Union of India & Others) upheld the constitutional
validity of clauses (4-A) and (4-B) in Art 16 and proviso to Article
335.
7. There was hold on related to OBC reservation in Central Government
Educational Institutions as per direction of the Supreme Court in
2007. On April, 2008, the Supreme Court of India upheld the
Government's move for initiating 27% OBC quotas in Government funded
institutions. The Court reiterated its prior stand that Creamy layer
should not be included in the ambit of reservation policy.
IV. Reservation for Women in India
In our present context, women's liberation Movement can be seen from
different perspectives. Their liberation from every oppressive and
exploitative element must be emphasized and implemented. Women should
be liberated politically, economically, socially, religiously and from
various fetters which oppress and degrade them. For this, they should
first be legally empowered which is fairly practical and feasible.
Reservation or affirmative action is one of the vital ways towards
their emancipation and empowerment. Such affirmative action is an
essential and integral part of justice.
The magnificence of the Indian Constitution lies in the fact that
it seeks to ensure amongst all, justice, liberty, equality and
fraternity having encapsulated under various articles of our
constitution. Articles 14, 15, 16 and etc, are important. Notably, in
(Government of A.P. v. P. B. Vijaykumar (1995) 4 SCC., 520: AIR., 1995
SC., 1648), the Court had provided a fresh dimension to Article 15(3)
having asserted that reservation for women in State employment is
permissible under that provision albeit separate provision in this
regard under Article 16. in this case, the rules of A.P. Government
were as follows: (i) preference for women in jobs that is better
suited for them; (ii) preference for women in jobs for which they are
equally suited with man; and (iii) direct recruitment to posts
reserved exclusively for women were upheld.
The Court upheld an order of Orissa Government that reserved 30% quota
for women in the allotment of twenty four hours medical stores as part
of self-employment scheme (Gayatri Devi Pansari v. State of Orissa
(2002) 4 SCC., 221: AIR., 2000, SC., 1531). And also reservation of
50% seats for women teachers in the selection of primary school
teachers in U.P. was upheld (Rakesh Kumar Gupta v. State of U.P.
(2005) 5 SCC., 172).
The practical plan of making a legal provision related to the
reservation of seats for women in the Parliament and State Assemblies
came into light during Rajeev Gandhi's tenure as the Prime Minister of
India when the Panchayati Raj Act, 1992 (73rd and 74th Constitutional
Amendment) came into effect granting not less than 33% reservation for
women in the Panchayati Raj Institutions or local bodies. Former Prime
Minister H.D. Deve Gowda made the actual promise for reservation of
seats for women in Parliament and State Assemblies in 1996. I.K.
Gujral proposed the present form and shape of the Bill during his term
as the Prime Minister of India. The Bill in its present shape
visualizes for reserving 181 seats in the Parliament for the women
India.
In a progressive manner, along with the changing situation in the
society in search and demand of social, economic, political and gender
justice, The Union Cabinet of India approved the Women's Reservation
Bill having aimed at providing 33% quota for women both in Parliament
and State Legislatures in 05/05/2008. The Bill is still yet to be
passed and now it is in the hands of the present Union Government of
India. Notwithstanding opposition from some politicians, it is one of
the major commitments of the present Union Government to uphold the
Bill very positively. Now people are waiting for the passing of that
Bill through which effective democratization can be witnessed as way
of actualizing gender justice which in turn can contribute towards the
building of just and participatory society.
V. Evaluation and Conclusion
1. Affirmative action or reservation is very vital so as to eliminate
substantive and concrete social and economic inequality existing in
our Indian society. This can be done in terms of social, political,
educational, economic and legal empowerment. Such affirmative action
is nothing but the grooming of ideals enshrined in the preamble of
Indian constitution and the actualizing of concepts contained in
Article 14 of Indian constitution. It is directed towards the
establishment of egalitarian society.
2. Classifying citizens into groups and giving preferential treatment
or option to particular class of people related to their advancement
does not in fact, violate the fundamental rights of other class of
people, rather it provides solid safeguards to the fundamental rights
of all citizens and hence any violation and deprivation of such
inherent rights could be stopped.
3. Constitutional goal of egalitarian society should be achieved. Pt.
Jawarha Lal Nehru's dream of making India into casteless and classless
society must remind us of the fact that the citizens should strive
towards the realization of such dream in our present context where
gross inequality and injustice do exist feasibly in various ways.
4. Reservation issue for women, if actualized could be one of the
important means for their empowerment and emancipation. This is a very
necessary way of doing for women's liberation from the oppressive
structure of our society. India is well known for having
systematically instituted and constructed patriarchal and hierarchical
structure of society. As result, Indian women have been suffering from
male domination, subjugation and oppression. In the midst of the
prevalence of such male domination in almost every area, it becomes
quite impossible for women to have access to power-sharing and
decision making unless exceptional provisions are made and
implemented. Hence, reservation for women is very crucial and
important.
5. The Indian constitutional law is a unique document that accepts
social pluralism and makes provisions for safeguarding the interests
of various social sections. It is a fact that social, educational, and
economic inequalities have existed from time immemorial in different
political setup and social segments of the Indian society. The SCs,
STs, OBC, and women represent the most depressed social groups who
have been suffering though out the ages due to caste prejudices,
economic inequality, sexism, development of wrong attitude and
development of faulty understanding related to work-division and etc.
Thus, a practical talk on reservation or affirmative action should be
understood in such context.
Conclusion
To sum up, social, economic, and political justice as envisaged by the
constitution of India imply a reduction of inequalities. It is
distributive or redistributive justice which involves distribution and
sharing of resources, powers, benefits and burdens in society
according to needs, worth, merit, and work. Reservation is an
efficient means to achieve an equalitarian society and that this
policy helps in bringing deprived and marginalized sections of the
people to a reasonable level of equality with the rest of the people.
The above mentioned and discussed fundamental rights and provisions
related to the actualization of affirmative action as contained in our
Indian constitution express genuine values of compensatory or
protective discrimination for the leveling of socially, economically,
educationally and politically deprived sections of the society in
India. And hence, the goal and mandate of Indian constitution so as to
make India into egalitarian society could be achieved.
T. Lakiumong Yimchunger, is a student of LL.M. 1st year at the
University Institute of Law, Rani Durgavati University, Jabalpur
(M.P.).
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