Introduction to the Doctrine of Protective Discrimination
The doctrine of positive discrimination is the instrument from which equality our forefathers of the Indian constitution imaged which will be achieved. It provides a protective environment to the people who were left behind in our society due to various kinds of discrimination like caste discrimination, which not only stopped their development but also their representation in society. To revive these downtrodden classes, this doctrine is followed. It basically works by giving them their representation in society, which cannot be snatched by other powerful people. Mainly the category of woman, victims of various types of discrimination of caste, race, colour, disability is the species of human which cannot survive in the society without the ventilation support of the protective discrimination which ascertains their representation and survival in the society. Some examples of protective discrimination are the reservation on the seats of different exams, parliament; special training, low application fees, special policies by government, scholarship test, etc.
The Mention of Protective Discrimination in Indian Constitution
In India, the principle of protective discrimination was earlier identified by the Gandhi when he recognized the Harijan after Dalit so that the crowds can grow out of their misinterpreted world and can understand the humanity at first. The makers of our constitution implemented these conceptions in our Indian constitution after independence and dedicated so many influential articles such as article 14 recognizing equality before the law as everyone is equal before the law, but some individuals require special treatment. Thus, reflecting the doctrine of reasonable classification, by following this, the government can treat people differently if such treatment is justified by the circumstances, but to save it from the trap of arbitrariness the supreme court laid down some tests in the case named Saurabh Chaudhari v Union Of India[i]. Respectively, the court subjected two conditions for such discrimination that is intangible differentia that means the nexus between the classification done and objective to be achieved from such classification and the second condition is the rationality of such classification.
Article 15 concentrates on the promotion of discrimination-free society from the race caste class sex gender etc. Article 16 devotes to the promotion of discrimination-free employment, Article 17 works for the eradication of untouchability and many articles like 46, 335, 330 and 332 encompass the upliftment for these classes in diverse areas of development like education, social environment, public services, employment, parliament, etc. [ii] Ultimately, the procreative discrimination is compensatory in nature as it will not eradicate the negative discrimination but will boost backward classes from its suppressed condition.
There were so many important modifications by the government in the Constitution and the interpretations established by the Supreme Court so that the benefit can be expanded to the classes who were singled out. Some important constitutional amendments were for the upliftment of SC/ST class as the addition of 16(4)-A and 16(4)-B by the 77th and 81st amendment Act respectively, which expresses the power to the government to enact any statutes for the upliftment of the targeted caste and to give them their acquired position in the society. In addition to this, there were other important steps taken by the legislature these are- reservation system[iii], the concept of a creamy layer so that the stronger backward class cannot chew up the benefit for actual downtrodden backward class, reservations to minorities, women so that every citizen of this country can get the opportunity to grow irrespective of any differences like race, class, caste, religion, gender etc.
Judicial stands on the Doctrine of Protective discrimination policy
The Supreme Court needed to define the meaning and scope of “backward class” so that the benefit acquired from this doctrine could be targeted to the correct set of the citizen. In the case of M. R Balaji v. State of Mysore[iv], where the apex court is of the opinion that based on the caste, the persons cannot be included in the class, as the person has to qualify two tests in order to get the benefit of the doctrine. First, the individuals who are claiming that they should be given the special treatment should be comparable to the SC/ST in the issue of backwardness and then another test is of the economic status of such an individual’s set by the authority, in the scale of poverty, caste, occupation, habitation, etc. So that it could be clarified to the authority that these are the individual who is having the right to get the special treatment for the upliftment in the society. Another case R Chitralekha v. State of Mysore[v] clarified that “caste cannot be equated with class”. In the judgment of Triloki Nath v. State of J&K[vi], State of Andra Pradesh v. P Sagar[vii] and A Peeriakapuran etc. v. State of Tamil Nadu[viii], benches held that protective discrimination must not be based on unjustifiable consideration otherwise it could be challenged, as the class is the gather of persons who have common traits with other essential considerations like downtrodden social, economical, educational development. Extensively individual will be considered in the class after determining its test in caste, sex, economic status, education, religion, place of birth, occupation.[ix] Another significant judgment is Indira Shawney and others v. Union of India and others[x] where the court held that backward classes of citizens will be examined by seeing it in the magnification of general level of advancement of the entire population of the country or state. So the nature to identify the backward class now was an objective test where the general comparison would be done. “Caste of the people neither can be sole criteria nor can be equated with class”. Further, it does not comply with the alternative analyses based on economic, social and educational background. In the case of Jagdish Negi v. State of UP[xi], it was recognized that “Backwardness of the class is not a static concept as it fluctuates from time to time.”
After finding out about the doctrine of protective discrimination, about its amendments and interpretations established by the court on its basis (class) there is the need for appropriate implementation of it without dealing with it further as the medium of securing votes for the political parties or as the mechanism of obtaining benefits for the stronger people so that, the benefit of upliftment can be signed in to the targeted group of people.[xii]
Written by Shrishti Verma, Intern (Dec’20 – Jan’21), Lexstructor
Reviewed by Lexstructor Legal Publication
[ii]The Constitution of India https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
[iii] http://www.legalservicesindia.com/article/846/Protective Discrimination.html#:~:text=Protective%20discrimination%20is%20the%20policy,of%20racial%20and%20caste%20discrimination.
[iv] M. R Balaji v. State of Mysore AIR 1960 SC 649.
[v] R Chitralekha v. State of Mysore AIR 1964 (6) SCR 368
[vi] Triloki Nath v. State of J&K AIR 1967 SC 1283
[vii] State of Andra Pradesh v. P Sagar AIR 1968 (3) SCR 595
[viii]A Peeriakapuran etc. v. State of Tamil Nadu AIR 1971 (2) SCR 430
[ix] Triloki Nath v. State of J&K (1) AIR 1969 SCR 103
[x]Indira Shawney and others v. Union of India and others 1992 Supp (3) SCC 212
[xi] Jagdish Negi v. State of UP AIR 1997 SC 3505
[xii]S.K Aggrawal, “Protective Discrimination and Backward Classes in India”, http://22.214.171.124:8080/jspui/bitstream/123456789/712/25/Protective%20Discrimination%20and%20Backward%20Classes%20in%20India.pdf