PROTECTIVE DISCRIMINATION: NOT A BOON FOR THE INDIAN CONSTITUTIONAL FRAMEWORK: PALOMITA SHARMA

Protective Discrimination: Not a boon for Indian Constitutional Framework

Palomita Sharma

Symbiosis Law School, Hyderabad

ISSN: 2582-3655

Abstract

“Our society has always been full of inequalities. It was a caste-ridden, stratified hierarchical society, and a particular segment of the society had been denied the bare human rights. Their education, wages, living conditions, social status was dictated by the whims of upper strata of society, reducing them to destitution. The economic backwardness brought social awkwardness which consequently made them downtrodden and thus depriving them even of the dignity of life. 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 grievance redressal mechanism. This inhumane and barbaric condition perpetuated for centuries, till “we the people” realized the malady impelling the framers of our constitution to think. Protective discrimination is the policy of granting special privileges to the downtrodden and the underprivileged sections of society, most commonly women. These are affirmative action programs, most visible in both the United States and India, where there has been a history of” racial and caste discrimination. The practice is most prominent in India, where it has been enshrined in the constitution and institutionalized.

The need to discriminate positively in favour of the socially underprivileged was felt for the first time during the nationalist movement. It was Mahatma Gandhi, himself a devout Hindu and a staunch believer in the caste system, who was the first leader to realise the importance of the subject and to invoke the conscience of the upper castes to this age-old social malady of relegating whole communities to the degrading position of “untouchables”. He also understood the political logic of inducting this large body of people into the political mainstream in order to make the freedom movement broader-based. The Constitution of independent India which largely followed the pattern of the Government of India Act, 1935, made provisions for positive discrimination in favour of the Scheduled Castes and Scheduled Tribes (SCs & STs) which constituted about 23% of divided India’s population. Besides reserving parliamentary seats for them they were given advantages in terms of admission to schools and colleges, jobs in the public sector, various pecuniary benefits for their overall development, and so on. Some of the constitutional provisions which aimed 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.
  • Article 330 and 332: Reservation of seats in the Lok Sabha and State Assemblies.

The general rule which exempted the scientific and technical posts from the purview of positive discrimination was applicable to the autonomous bodies too.”

Introduction

“Any democratic culture faces the test of orchestrating two basically opposing political ideas first, equality under the steady gaze of law regardless of religion, rank, belief, race and sexual orientation and second, social equity at the expense of a similar responsibility for equality under the watchful eye of the law. In India, enormous quantities of individuals have been encountering social discrimination and estrangement through hundreds of years by virtue of its unconventional social setting and the organization of the station framework. The discrimination endured by the abused areas of the general public over a significant stretch of time has prompted the idea of protective discrimination to defend their interests. The principle purpose for protective discrimination is to give the fundamental offices to the denied areas and to expedite them to the standard society equivalent footings with others. Equality under the watchful eye of law is the most valuable democratic right of an Indian native however by simply guaranteeing equality of chance to all in regard of instructive and work opportunity, we might overlook the exceptional issues of some retrogressive areas of our general public who have been experienced social, political, financial, instructive hardship for a long time. It is a notable proclamation that there is equality just among equivalents. To rise to unequal is to propagate inequality. When we enable powerless and solid to contend on equivalent balance, we roll the shakers for the solid.

The present paper is endeavoring to illuminate the rationale behind the protective discrimination system supported by the Indian Constitution and parliament. Endeavors have additionally been had to evaluate the effects and present needs of this component in the contemporary socio-political arrangement of India. The present paper is endeavoring to illuminate the rationale behind the protective discrimination component supported by the Indian Constitution and parliament. Endeavors have likewise been had to survey the effects and present need of this instrument in the contemporary socio-political arrangement of India.

Our society has consistently been brimming with imbalances. It has been a position ridden, stratified and various leveled society where individuals are gathered based on station in which they fall. Some lower set portions of society on standing balance have been denied the” “absolute minimum rights and benefits of people. Their instructive, compensation, living conditions and economic wellbeing have been directed by the impulses of upper strata of society decreasing them to the degree of desperation. The whole social and political space was detracted from the lower standing individuals and which propagate their backwardness and tossed them on the kindness of nature and fate. In a general public compartmentalized on position premise, upper ranks controlled the switches of intensity empowering them to run their whips, biased to the interests of lower portions of the general public.

Protective discrimination is the arrangement of allowing extraordinary benefits to the oppressed and minimized areas of society. Ladies are given additional accentuation. Protective discrimination is the governmental policy regarding minorities in society and the most unmistakable in both the US of America and India, where there has been a past filled with racial and standing discrimination. The training is the most noticeable in India, where it has been revered in the Constitution and is systematized. The need to segregate emphatically for the socially oppressed was felt just because of the more extensive national development. It was Mahatma Gandhi, himself an ardent Hindu and a staunch devotee to the rank framework was the primary chief to understand the significance of the subject and attempted his level best to summon the soul of the upper station to this old social disease of consigning entire network to the debasing situation of untouchables. Gandhi needed to make the national development as wide as could reasonably be expected and the woeful states of underestimated networks tormented him a great deal. He longed for wiping out social obstructions of the low station individuals and furthermore to verify their entire hearted commitments to free the nation.”

In M.R. Balaji v. State of Mysore, it was held that the rank of a gathering of people can’t be the sole or even dominating component however it might be a significant test for determining whether a specific class is in reverse or not. The two tests ought to be conjunctively applied in deciding in reverse classes: one, they ought to be practically identical to the Timetable Standings and Calendar Clans in the matter of their backwardness; and, two, they ought to fulfill the methods test, in other words, the trial of monetary backwardness set somewhere around the State government with regards to the predominant financial conditions. Destitution, position, occupation, and home are the chief components adding to social backwardness.

In R. Chitralekha and Anr. v. State of Mysore and Ors.[1] also, Triloki Nath v. J and K State[2]and K.C. Vasanth Kumar v. Karnataka[3]: The summit Court clarifying the importance of ‘Class’ saw that “The pith of the meaning of “Class” is that a gathering of people having regular characteristics or traits combined with impeded social, material (financial) and scholarly (instructive) improvement in the sense not having such a large amount of mind and capacity will fall inside the ambit of ‘any in reverse class of citizens’ under Article 16 (4) of the Constitution.”

Further in R. Chitralekha v. State of Mysore, it was expressed that: “…what we expect to stress is that by no means a “class” can be compared to a “caste”, however, the position of an individual or a gathering of individual might be considered alongside other important factors in placing him in a specific class.”

In State of Andhra Pradesh v. P. Sagar[4], it has been seen that: The articulation “class” signifies a homogeneous segment of the individuals assembled due to specific similarities or basic characteristics and who are recognizable by some basic qualities, for example, status, rank, occupation, living arrangement in a region, race, religion and so forth. In deciding if a specific segment structures a class, the station can’t be rejected by and large. In any case, in the assurance of a class a test exclusively dependent on the rank or network can’t likewise be acknowledged.

In Triloki Nath v. J and K State (II) Shah, J., representing the Constitution Seat has emphasized the importance of the word ‘class’ as characterized on account of Sagar and included that “for the reason for Article 16 (4) in deciding if a segment frames a class, a test exclusively dependent on position, network, race, religion, sex, plunge, spot of birth or living arrangement can’t be received, in light of the fact that it would straightforwardly outrage the Constitution.

In A. Peeriakaruppan, etc.  v. State of Tamil Nadu[5]: The Incomparable Court saw that “A station has consistently been perceived as a class. On the off chance that the individuals from a whole station or network at a given time are socially, financially and instructively in reverse that position on that record be treated as a regressive class. This isn’t on the grounds that they are individuals from that station or network but since they structure a class.”

In Indira Sawhney and Ors. Versus Union of India and Ors.[6] , the Court saw that:-

  • The significance of the articulation “in reverse classes of residents” isn’t qualified or limited by saying that it implies those other in reverse classes who are arranged comparably to Planned Rank as well as Booked Clans. Backwardness being a relative term should in the setting be made a decision by the general degree of progression of the whole populace of the nation or the State, all things considered.
  • There is sufficient protection against abuse by the political office of the power u/Workmanship. 16(4) in the arrangement itself. Any assurance of backwardness is neither an emotional exercise nor a matter of abstract fulfillment. The activity is a goal one. Certain target social and other criteria must be fulfilled before any gathering or class of natives could be treated as in reverse. On the off chance that the official incorporates, for security reasons, gatherings or classes not fulfilling the pertinent criteria, it would be an unmistakable instance of misrepresentation on power.
  • ‘Standing’ neither can be the sole standard nor would it be able to be compared with ‘class’ with the end goal of Article 16 (4) for determining the social and instructive backwardness of any segment or gathering of individuals to bring them inside the more extensive implication of ‘backward class’. By and by \’caste\’ in Hindu society turns into an overwhelming variable or essential measure in deciding the backwardness of a class of residents.
  • Except if ‘caste’ fulfils the essential trial of social backwardness just as the instructive and monetary backwardness which are then built-up and acknowledged criteria to distinguish the ‘backward class’, a rank fundamentally without fulfilling the concurred formulae, for the most part, can’t fall inside the significance of ‘backward class of citizens’ under Article 16 (4), spare in given remarkable conditions, for example, the position itself being recognizable with the conventional control of the lower strata – showing the social backwardness. What’s more, ‘Class’ has occupation and Station nexus; it is homogeneous and is controlled by birth. It further affirmed Chitralekha case.

Further, if there should arise an occurrence of Jagdish Negi v. State of U.P.[7] the Court held “Backwardness is anything but a static marvel. It can’t proceed uncertainly and the State is qualified for audit the circumstance every once in a while.”

  • Protective discrimination as an amalgamation of social equality and social justice

“Any democratic culture faces the test of blending two basically conflicting political ideas. Such society attempts to keep up social equality among its individuals. Present political democratic social orders depend on the law of equality and equality under the steady gaze of law necessitates that nobody can be segregated based on religion, caste, belief, race, sexual orientation, spot of birth, economic wellbeing and so forth. Everybody ought to be given equality of chance to push forward in the way of advancement and improvement without being prevented by others. Such democratic social orders can’t skip from their welfare commitments. They need to keep up social equity. Social equity is intended to make such a social request where no one ought to be left helpless before others. At the point when equality of chances are given, the more fragile and underestimated individuals can’t contend with solid and prosperous individuals to share cultural assets. Support of social equity needs some trade-off with social equality in the support of the flimsier segments of society. In India, huge quantities of individuals have encountered social discrimination through hundreds of years because of its particular foundation called the caste framework. Endeavors have been made according to the Constitution and parliament to give a review to these under favoured segments through the arrangement of reservation or quantities for them in the employments, situates in instructive organizations and assemblies and in government’s guides, credits and other improvement helps. The discrimination and estrangement endured by the mistreated segments of Indian culture grabbed the eye of the Constitution creator who himself had been a Dalit of Mahar caste, thusly, he upheld the idea of protective discrimination to shield their interests. The principle explanation for protective discrimination is to give the fundamental offices to the denied segment and to carry them to the standard society. Two portions of Indian culture viz. the non-innate who were of lower caste were named as scheduled castes and those with inborn highlights were named as planned tribes. These two classes were set past the limits of the bigger society, the scheduled tribes by virtue of their disengagement specifically inborn areas from standard society and the planned castes because of the isolation forced on the by the principles of the immaculateness and contamination.

There were statements in the Constitution of India which target giving equality of chance to all by denying discrimination and to expel aberrations among advantaged and oppressed. The Constitution of free India which generally pursued the example of the legislature of India act.” 1935 made arrangements for protective discrimination for the planned castes and scheduled tribes which comprised about 23% of partitioned India’s populace. Other than saving parliamentary seats for them, they were given points of interest in a few different regards, for example, admission to schools and universities in particular measures, occupations in the open divisions to build their quality in composed segment of a business showcase, different financial advantages for their general financial advancement, etc. The Constitution, for profiting the socially in reverse classes of Indian culture and to bring them at standard with other generally happier classes, ensured the fundamental right of equality of all residents under the watchful eye of the law, however, it likewise completely set out that nothing in the Constitution will keep the state from making any exceptional arrangement for the headway of any social and instructively in reverse classes of natives or for the planned castes and the scheduled tribes. The rationale behind completely referencing particular treatment for discouraged classes was to protect the soul of social equity.

  • The logic behind protective discrimination policy

The protective discrimination strategy recommended by the Indian Constitution and bolstered and executed by law-making bodies has a certain rationale behind it. Equality under the watchful eye of law is the most valuable democratic right of an Indian native however by simply guaranteeing equality of chance to all residents in regard of instructive and business opportunity, we might disregard the exceptional issues of some regressive segments of our general public who have experienced social, political, financial, instructive hardships for quite a long time. It is an outstanding announcement that there is equality just among equivalents. To approach unequal is to sustain inequality. When we enable feeble and solid to contend on equivalent balance, we are rolling the bones in favour of the solid. indeed, except if extrinsic guides are given to the under favoured individuals, it is difficult to recommend that they have equivalent open doors with the further developed individuals. It is the genuine avocation for the interest of social equity that the under advantaged residents ought to be given a particular treatment. Equality of chance guideline requires bringing every one of the networks and areas of Indian populace on genuine equality and limit level and only because of this reality they must be remunerated decidedly by cutting offers from cutting edge classes of individuals.”

  • Constitutional provisions to make the life of depressed classes better

“Untouchability has been the prime disgrace of Indian discouraged classes thus the Constitution has annulled it and states that it’s training in any structure is an offense. Article 15(1) of the Constitution gives that:

(1) the state will not victimize any resident on the grounds just of religion, race, caste, sex, a spot of the birth, or any of them.

(2) no native will, on grounds just of religion, race, caste, sex, a spot of birth or any of them, be dependent upon any incapacity, confinement or condition with respect to –

(a) entrance to shops, open cafés, inns and spots of open amusement, or

(b) the utilization of wells, tanks, washing Ghats, streets, and spots of the open hotel kept up completely or somewhat out of state assets or devoted to the utilization of the overall population.

As indicated by Article 16 (1) there will be equality of chance for all natives in issues identifying with work or arrangement to any office under the state. Article 16 (2) gives: no resident will, on grounds just of religion, race, caste, sex, place of birth, living place or any of them, be ineligible for or oppressed in regard to any work or office under the state. What’s more, Article 16(3) enables the parliament to take exceptional protective measures for the individuals having a place within reverse classes. Article 17 of the Constitution proclaims in unequivocal terms about the abrogation of untouchability. It gives, ‘ untouchability is canceled and its training in any structure is illegal: the authorization of any inability emerging out of untouchability will be an offense culpable as per law.

The Constitution again accommodates the annulment of untouchability in the mandate standards of the state approach. The Constitution producers endorsed these destinations in the wake of paying due thought to the financial capability of the nation. These mandates were recommended as a piece of the administration strategy with the goal that India could accomplish the wide target of a welfare state. Much work has been finished by the focal just as the state government as per the plan of the arrangements under the order standards of state strategy. For example, Article 36 states, ‘ the administration will build up the economy and instructive interests of the more fragile classes, particularly scheduled castes and planned in” “reverse classes, with unique safety measures and will shield them from social shamefulness and a wide range of misuse and Article 46 furnishes that the state will advance with uncommon consideration the instructive and financial interests of the flimsier segments of the individuals and species of the planned castes and the planned tribes and will shield them from social treachery and all types of exploitation. There were arrangements in the Constitution for making uncommon services for the discouraged class of individuals. Article 164 of the Constitution accommodates exceptional services for the discouraged classes in the condition of unified Bihar, Madhya Pradesh, and Orissa, there will be a priest accountable for innate welfare who may what’s more be responsible for the welfare of the planned castes and in reverse classes or some other work.

There are arrangements for the reservation of seats in the place of individuals. Article 330 and 352 give: Article 330 (1): seats will be held in the place of the individuals for:

(a) scheduled castes

(b) scheduled tribes in the inborn regions of Assam; and

(c) scheduled tribes in the self-ruling areas of Assam.

Article 330 (2): the quantity of seats saved in any state for the planned castes or the scheduled tribes under condition (1) will bear, of as about as may a similar extent to the all-out number of seats allocated to that state in the place of the individuals as the number of inhabitants in the scheduled castes in the state or to the planned tribes in the state or part of the state as the case might be in regard of which seats are so held, bears to the complete populace of the state. As indicated by Article 352 (1) seats will be held for these scheduled castes and planned tribes, with the exception of the scheduled in the ancestral territories of Assam in the administrative amass of each state determined to some degree A or B of the principal plan. Article 352: seats will be saved additionally for the self-sufficient locale in the administrative gathering of Assam. Article 335: the cases of the individuals from the planned castes and the scheduled tribes will be taken the thought reliably with the support of productivity of an organization, really taking shape of arrangements to administrations and posts regarding the undertakings of the association or of a state. Further Article 338 states: (1) there will be unique official for the scheduled castes and planned tribes to be designated by the president. (2) it will be the obligation of the extraordinary official to research all issues identifying with the shield”“accommodated the scheduled castes and planned clan under this Constitution and report to the president upon the working of those protections at such interims as the president may coordinate and the president will make every single such report be laid before each place of parliament.

The Constitution of India likewise accommodates the Constitution of a commission by the leader of India. Article 340 (1) states, ‘ the president may by request choose a commission comprising of such individual as he might suspect fit to examine the states of socially and instructively in reverse classes inside the region of India and the challenges under which they work and to make proposals with regards to the progression that ought to be taken by the association or any state to evacuate such troubles and to improve their condition and with regards to the awards that ought to be made for the reason by the association or any state and the conditions subject to which such awards ought to be made, and the request delegating such commission will characterize the strategy to be trailed by the commission.

  • Who are Scheduled caste (SC) people and Scheduled Tribes (ST) people?

The scheduled castes comprise of the gatherings that are viewed as disconnected and untouchables as indicated by the Hindu social request. The working of this unit of Hindu social request was made by the punctuation of immaculateness, contamination, contriving a financial system with a religious and political authorization behind it. SCs have been spatially isolated in the towns and towns and occupied with occupations with negative glory and had no job in the power structure of the State. The scheduled castes are not homogenous gathering and are separated into numerous castes and sub-castes, just as by language and topography.

Article 366 (25) characterizes scheduled tribes in that capacity tribe or innate networks or parts of or bunches inside such tribes or ancestral networks as are regarded under Article 342 to be scheduled tribes with the end goal of this Constitution. Scheduled tribes are those individuals with ancestral personalities and cultures who are in reverse than another individual” innate individuals.

Protective discrimination for women

The Constitution of India is one of the most dynamic reports so far as the legitimate privileges of the ladies are concerned. Additionally, the major rights, the Constitution of India has made extraordinary arrangements for ladies under the order standards of state approach, especially in Articles 38, 39, 42 and 44. Article 38 (2) expresses that ‘ the state will, specifically endeavor to limit the imbalances in pay and try to take out disparities in status, offices, and openings, among people as well as among gatherings of individuals living in various regions or occupied with various occupations. This Article guarantees equality of people in likely every region of day by day life. Article 39(a) explicitly gives, ‘that the natives, people similarly, reserve the privilege to satisfactory intends to vocation’. The Constitution under Article 42 made explicit arrangements for just and sympathetic states of work and for maternity help.

  • The reservation policy for the purpose of providing protective discrimination

Our Constitution ensures equity and equality of chance to every one of its residents. It additionally perceives that an equivalent open door suggests rivalry among equivalents and not unequal. Perceiving the inequality in our social structure, the producers of the Constitution contended that more fragile segments must be managed on a special balance by the state. An uncommon duty was along these lines set upon the state to give security to the more fragile areas of society. In an alike manner, the Constitution accommodated protective discrimination under different Articles to quicken the way toward structure a populist social request. In this way special treatment for the discouraged classes incorporating reservation of seats in parliament, high positions ought not be comprehended as a demonstration of generosity with respect to the political elites at the national level, instead of a methodology to give them a portion of intensity in legislative issues and organization and to elevate them socially and financially.

At first, the level of reservation in the 1950 Constitution was 12.5 percent for SCs and 5 percent for STs yet these rates were hence upgraded in 1970 to 15 percent for SCs and 7.5 percent for STs. The reservation was given in employments, confirmation in schools and colleges, local” “and state administrative congregations. Later, it was reached out to open endeavors and nationalized banks. Almost every Indian state instituted laws in a single purpose of time or the other to give reservations to the SCs and STs, in the administrations under their influence and locale. The legislatures likewise gave certain different concessions on reservation mode, for example, reservation in advancement and a lot more offices.

The reservation facility for the weaker segment was endeavored to be stretched out to legal arrangements in the Preeminent Court and high court was uncovered path back in the January month of 1999. It was referenced in a secret record of the president with his official stamp. The updates on stretching out reservation framework to higher legal arrangements made wild discussion between the supporter of meritocracy and protective discrimination. In such manner, the central equity alongside different judges of the incomparable court and numerous legal advisers of high courts demonstrated absolute resistance to the proposed reservation in legal arrangements, especially at the peak level. This episode made a crisp discussion on the issue of reservation arrangement. If reservation approach was so unsafe in itself according to the perspectives on the main equity and different judges of the incomparable court and high courts than another inquiry emerge about tolerating 27 percent reservation amounts for OBC in government occupations, instructive organizations and so forth., by the preeminent court in its verifiable judgment.

The contentions focusing on reservation arrangement have numerous measurements and thought processes and this has opened new bearing to Indian political framework just as presenting genuine difficulties for the general public and the economy.

  • Criticism against the reservation policy

Various inquiries have been raised from various quarters for quite a while about the method of reasoning behind the reservation arrangement. One contention is that these ought to have been suspended ten years from the coming into power of the Constitution. By broadening the term each decade, we are conflicting with the desires of the Constitution creators. The reservation approach is according to this contention is to derecognize merits and to deny the more qualified. The whole nation is in reverse thus the support for unique measures for a specific segment among the regressive doesn’t emerge. The subsequent contention given in such manner is that” “the reservation arrangement has seen fifty years of its insufficient impacts and it couldn’t improve the states of the areas for those it was implied initially. Without a doubt, not very many individuals have been profited by it and at present additionally, they are cornering the favorable circumstances accompanying the reservation arrangement. The poor and focused on fragments are abandoned. The third contention is that this reservation approach is bent to get political preferences by personal stake gatherings and because of this political circle is getting dirty. One view is that since the objects of reservation has not been accomplished; it ought to proceed for a couple of more decades. The other view is that it is the ideal time to eliminate the reservation gradually. This should be possible either by expelling the rich layers or by giving the reservation rate a chance to decrease to an evaporating point. Truth be told, this procedure ought to have been started a lot before. In the period of rivalry and regard for legitimacy and ability, the reservation strategy is keeping India in reverse and is making India a center point of apathetic and inept animals putting obstructions on the way of advancement and progress of the country. On the off chance that our nation had turned into a caste free society even before twenty-first century then it was vastly improved. The state of purported oppressed segments in India are the equivalent notwithstanding crossing such huge numbers of decades after freedom and this demonstrates the lacunae and escape clauses in the reservation framework itself.”

Conclusion & critical assessment

“Hypothetically, it is inadmissible and for all intents and purposes hard to scrap the arrangement of reservation. At the point when this approach was executed the thought process behind was unadulterated and as the rationale has not been sufficiently satisfied at this point because of youthfulness and lacunae in the Indian political framework. Some more years, it ought to be reached out with required adjustments and cautiousness to get the most ideal outcomes. On the useful side, it is difficult to scrap the arrangement all of a sudden because of numerous reasons. That is the reason it is appropriate to stretch out the reservation approach to penniless gatherings. In spite of the fact that scratching is unimaginable and prescribed, however, it must be logical and balanced quite far. The reservation approach was believed to be founded on the caste balance to enhance the states of the hardship and minimization of the lower castes however throughout the years, this caste question corrupted the very establishment of the Indian culture and polity. In the present period, caste ought not to decide one’s life risks rather space ought to be given to benefits and abilities. To reserve spot arrangement increasingly emotional and convey wanted outcomes, a few proposals are recorded as under:

1) in the present period, the salary of an individual decides his backwardness as opposed to his caste, so deciding backwardness to broaden reservation ought to be pay or monetary possibilities of a people.

2) Throughout the year’s numerous segments in the beforehand in reverse SCs, STs and OBCs gatherings have accomplished acceptable headways in their way of life and financial, political and social circles and regardless of this, they are the genuine recipients of reservation strategy denying other genuine hindered areas of society. So the idea of a smooth layer ought to be applied to every one of the networks of SCs, STs, and OBCs and they ought to be kept out of reservation-related advantages.

3) Because of the reservation strategy, the general public, economy, and industry have been denied getting required abilities and gifts thus the reservation ought to be confined uniquely to the original recipients. The up-and-comers whose guardians have just profited reservation offices in verifying an occupation ought not to be given the office once more. This will help in halting the constrained assets of the nation to get depleted.

There is a genuine requirement for the re-examination of the reservation arrangement in India on the grounds that the reservation approach bargains with the effectiveness of our nation’s workforce. Indian political framework and the economy have been endured a great deal because of this reservation approach dependent on the bogus criteria of caste. This has cleared” “route to the personal stakes to serve their thought processes at the expense of the interests of the Indian culture and state. This arrangement has turned out to be one of the most noticeable and consistently consuming issues for the ideological groups and government officials to gather cast a ballot and to reinforce their situations in caste partitioned society. The reservation strategy and framework resembles a prolific field where the plants of defilement and wastefulness develop harming gradually the whole society and its future. The degenerate and savvy government officials are effective in fuel fires on the issues of castes and reservation and captivate the general public on caste terms and make states of disarray, issue and peace issues. The reservation approach dependent on caste term is obstructing India’s development, improvement, and competency in all regards. Because of this awful arrangement of reservation approach high goals revered in the prelude of India have stayed undiscovered and stayed just trifling words with no useful utilities. Holding one class against another made a sentiment of division and outline in the general public with aggressive gatherings acting like foes and the thought of solidarity of society is undermined and somber. The procedure of reservation should go for and dependent on the part of sifting through genuine denied people and to carry them to justice.

Throughout the years the reservation framework has given a mutilated picture to India and because of this, the open part is rendered wasteful and degenerate vis-a-vis the private division. The reservation given on caste term isn’t at standard with acculturated world standards and qualities and it is against the thought of equality and advancement. Reservation framework, it can’t be rejected by and large because of useful ramifications, can be redesigned and ought to be recently arranged, executed and intermittently observed and evaluated. The need of great importance isn’t to let the issue of reservation and related exercises engrossing the genuinely necessary restricted assets of the nation and furthermore not empowers it to make further inlet, disorder and wasteful aspects in the Indian culture.”

Suggestions

After about three decades of the operation of the policy of protective discrimination, the parameters of the socio-economic situation has changed enough. Now the Scheduled Caste and Scheduled Tribes are no longer as uniformly backward as they have been when the Constitutional provision for preferential facilities for them was made. As individuals, they had reached a point at which they seemed to be much less deserving of preferential provisions than the mass of the population to which they belong. Therefore the Creamy Layer test should also be applied to the SCs and STs for identifying the actual beneficiaries under the Schedule, prepared for them only.

The continued reluctance to define the elements that constitute the ‘backwardness’ of the Scheduled Caste and Scheduled Tribes results in a failure to recognize and attend to the specificities of their situation. It reduces to mechanical, administrative measures what should be carefully designed strategies for the advancement of a historically disadvantage section of Indian society. So, it’s high time to frame out the criteria and yardstick through which SC, ST & OBC could be defined.

Economic criteria should be the basic consideration for judging whether a particular individual is eligible for or deserves some special protection or not, along with his social background. Simply on the basis of educational and social backwardness as indicated no one should be judged as belongs to a particular caste or class. It is still unsolved that whether Articles 15 (4) and 16(4) are enabling provisions or are guaranteed rights. So, a clear and certain guideline is required to find out either by the Supreme Court or the Parliament regarding the true character of these two Articles, to make it adequate for the purpose for which they are made.

Presently various groups demand various benefits. The state is tugged and pushed. It lurches from one concession to another. It becomes paralyzed. It loses its legitimacy and capturing the state becomes all-important. And all this is done in the name of ‘will of the people’, the mandate by the Janata and ‘Social Justice’. Justice-social economic and political is a triune phenomenon inscribed as a pledge in the Preambular glory of our Constitution. And with our independence from the British rule, we have lost the excuse of blaming the British for anything going wrong, we will have nobody to blame except ourselves. So, the time has come to change our attitude towards the framing of casteless society with due protection for the downtrodden and underprivileged people, providing Justice- social, economic and political in the true sense of the term. From the jurisprudential point of view also it is not enough to work out a just scheme of distribution, from whatever point of view, but there is the further problem of getting it” “accepted and keeping it acceptable, which requires constant redistribution according to changing circumstance. Both initial acceptance and continued acceptance depend on people feeling that the scheme is at least not unjust. Therefore, “the wheel turns history changes”. The old order may change the yielding place for a new social and economic order, but the process of transition must be accompanied by an honest and transparent attitude and then only Social Justice can be said to have been done. It is equally true that “Goals are dreams with deadlines”; hence, social justice is a goal of the Constitution of India, protective discrimination is the never-ending dream for the politicians for their gain and interest too. Therefore, it can be suggested that there must be deadlines or specified time bar for achieving that goal of social justice through the concept of protective discrimination.”

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4. Maheswari, S.R., The Mandal C’/ommission and Mandalisation: a critique, New Delhi, Conceptpublishing 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.


[1]1964 AIR 1823

[2]1969 SCR (1) 103

[3]1985 AIR 1495

[4]1968 AIR 1379

[5]1971 AIR 2303

[6]AIR 1993 SC 477

[7]1997 AIR (SC) 3505

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