Understanding the Constitution of India and positive discrimination

• Author: Tameshnie Deane
• DOI: 10.10520/EJC153211
• Pages: 157-176
• Published date: 01 January 2011
• Date: 01 January 2011

Understanding the Constitution of India

and positive discrimination

Tameshnie Deane

*

1Overview

India is a democratic country facing the not so unique challenge of achieving

equality in the form of special provisions for all of its citizens.

1

Special provisions

are those steps taken by the Indian government for certain classes of the Indian

population in order to reach the goal of social equality as laid down by the

Constitution of India.

2

The goals of social justice and equality refer particularly to

the standing of ‘Scheduled Castes’, the ‘Scheduled Tribes’ and to a limited extent,

‘the Other Backward Classes’.

3

However, the term ‘equality’ needs to be defined

in this context. ‘Equality before the law’ is not the same as ‘equal protection of the

law’.

4

It is the latter, more positive concept that is upheld by the Constitution of

India in the achievement of equality for all of its citizens.

5

In India, the focus area

of such measures ranges from employment in the public sector to the reservation

of seats in government and education. The inducement towards affirmative action

has a dual purpose. Firstly it aims to maximise diversity at all levels in society, and

*

BProc (University of Natal Durban), LLB (University of Natal Durban), LLD (UNISA). Associate

Professor, Criminal and Procedural Law, College of Law.

1

For example, even a developed democracy like the United States of America is no exception and

has implemented affirmative action policies to deal with the issue. South Africa too faces the

challenge of harmonising a country damaged by the outcomes of apartheid and ensuring that justice

is served for the less privileged sections of the society at the cost of individual merit and the equality

of all citizens before the law.

2

The Constitution of the Republic of India of 1950 is the world’s lengthiest written constitution (with

395 articles and 8 schedules) and was passed on 1949-11-26. It has been in effect since 1950-01-

26. The Directive Principles of the Constitution underline that ‘the State shall promote with special

care the educational and economic interest of the scheduled castes/tribes and shall protect them

from social injustice and all forms of exploitation’.

3

Article 46 of the Constitution of India obligates the state to promote with special care the educational

and economic interests of the weaker sections of the people, in particular, of the scheduled castes

and scheduled tribes.

4

Article 14 of The Constitution of India guarantees equality before the law and equal protection of the law.

5

Article 16(1) and 16(2) of the Constitution guarantees equality of opportunity.

(2011) 26 SAPL158

secondly to redress disadvantages due to discriminatory practices. The principle

of equality in this sense refers to attempts to create equal opportunities for

persons who have been previously disadvantaged. Positive measures therefore

seek to ensure greater equality of opportunity,

6

and this aim implies that the needs

of these different groups of people often necessitate different treatment, ultimately

leading to the realisation of socio-economic equality among all citizens of India.

7

This article looks at the Republic of India’s version of what is referred to as

‘affirmative action’ in South African legal parlance. It attempts to give the reader

an understanding of the functioning and challenges of affirmative action and the

difficulties in the implementation of the Indian Constitution’s affirmative action

programmes. It also highlights some of the many problems faced by the Indian

courts and to give readers with similar agendas an overview of the advantages

and disadvantages of a programme that has already been implemented. The

reason for looking at the Indian system of affirmative action is that the Indian

system of positive discrimination has now been in place for over fifty years. Any

democratic constituency that is implementing such a programme can only benefit

by drawing upon India’s methods and wealth of experience with regard to the

implementation of affirmative action programmes in the form of reservations.

8

2 Caste discrimination

For centuries, India’s people have experienced social discrimination based on the

institution called the ‘caste system’.

9

Each caste is historically linked to an occupation

and represents a strict social hierarchy of status into which people are born and can

never change their caste identity.

10

Therefore, caste is inherited and sanctioned by

6

Edwards When race counts: The morality of racial preference in Britain and America (1995) 29.

7

Deshpande Affirmative action in India and the United States world development report (2006).

8

Reservation is a form of affirmative action whereby a percentage of seats are reserved in the public

sector, union and state civil services, 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 disadvantaged communities and the Scheduled Castes and Tribes.

The reservation policy is also extended to the Scheduled Castes and Scheduled Tribes for

representation in the Parliament of India. The central government of India reserves 27% of higher

education seats for the socially and educationally disadvantaged. Individual states have the power

to legislate further reservations. Reservation in most states is at 50%, which is the maximum amount

declared constitutional by the Supreme Court. De Zwart ‘The logic of affirmative action: Caste, class

and quotas in India’ Acta Sociologica (2000) 43 at 235.

9

Many castes are traditionally associated with an occupation, such as high-ranking Brahmans;

middle-ranking farmer and artisan groups, such as potters, barbers, and carpenters; and very low-

ranking ‘untouchable’ leatherworkers, butchers, launderers, and latrine cleaners. There is some

correlation between ritual rank in the caste hierarchy and economic prosperity. Members of higher-

ranking castes tend, on the whole, to be more prosperous than members of lower-ranking castes.

Many lower-caste people live in conditions of great poverty and social disadvantage. Heitzman and

Worden (eds) India – A country study (1995).

10

At the top of the caste system are the Brahmins, who are the priests and arbiters of what is right

and wrong in matters of religion and society. Next are the Kshatriyas, who are soldiers and