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Essay On Protective Discrimination In India

CHAPTER 9

 

Issues of Social Justice :

Scheduled Castes and Scheduled Tribes and Other Backward

Classes – An unfinished national Agenda

Scheduled Castes and Scheduled Tribes have been, for centuries, the most neglected, marginalized and exploited people.The scourge of untouchability was a blot on the Indian civilization.Despite the constitutional declaration of its abolition under Article 17 of the Constitution, it persists in many subtle and not so subtle ways. It has been an unmitigated tale of prejudice, discrimination and exploitation.At stake, in the ultimate analysis, is the very integrity and survival of Indian society. Without transformingverticalinequalityinsociety into horizontal equality, democracy will havenomeaning.If

 

Scheduled Tribe Populations in India

 

q    In 1991, close to 68 million people – 8% of India’s population - were classified as belonging to Scheduled Tribes.This is more than the entire population of East Asia (excluding China), and roughly equivalent to the total populations of Canada, Australia, Sweden and Belgium.

 

q       Four states – Madhya Pradesh (15.4 million), Maharashtra (7.32 million), Orissa (7.03 million) and Bihar (6.62 million) – accountfor almost 50% of India’s Scheduled Tribe population.

 

q       Forty districts in India (Appendix X) account for 50% or more of Scheduled Tribe population.35 districts have no Scheduled Tribe population.

 

q    Five States/Union Territories - Chandigarh, Delhi Haryana, Pondicherry and Punjab (Appendix VI) -report no Scheduled Tribe populations.

 

q       Scheduled Tribe populations are not a ‘minority’ in all States and Union Territories.The States - Mizoram (95%), Lakshadweep (93%), Nagaland (88%), Meghalaya (86%), Dadra and Nagar Haveli (79%), Arunachal Pradesh (64%), Manipur (34%) and Tripura (31%) -have 30% or more of Scheduled Tribe population.

 

 

the law is not in favour of disadvantaged, they will never achieve true equality of opportunity and freedom of choice.The nation’s unity will be at risk.In some form or the other, overt or covert, in many subtle ways, the prejudice against these weaker sections persists.This is perhaps because of the mindset of certain sections of the society.Indeed to refer to the Scheduled Castes and Scheduled Tribes and other backward classes as mere ‘sections of society’ is a grave misuse of words.They togetherconstitutethevastand notmerely a section.The recurring themes that, unfortunately, have been dominating the debate on reservation is – ‘Could the rights of individual be put at risk in the interest of a disadvantaged group?Does it amount to reverse discrimination?Is it acceptable to require an individual to make the sacrifice?These questions which dominate the debate are greatly misplaced.The injustices heaped on the Scheduled Castes and the Scheduled Tribes for no reason other than the pure accident of birth have few parallels in the history of civilisation.

 

Scheduled Caste Populations in India

 

q       In 1991, close to 138 million people – over 16% of India’s population - were classified as belonging to Scheduled Castes.

q       Four States – Uttar Pradesh (29.3 million), West Bengal (16.08 million), Bihar (12.6 million) and Tamil Nadu (10.71 million) - account for 50% of India’s Scheduled Caste population (Appendix I).

q       One State and two Union Territories report no Scheduled Caste populations.They are Nagaland and Andaman and Nicober Islands and Lakshadweep.

q       100 districts (Appendix-V) account for 51% or more of Scheduled Caste Population

 

 

 
 

 

 

 

 

 

 

 

 

 


9.1Constitutional Mechanism For Uplift Of Scheduled Castes,

Scheduled Tribes And Other Backward Classes

 

The deep concern of the framers of the Constitution for the uplift of the Scheduled Castes and Scheduled Tribes and Other Backward Classes is reflected in the elaborate constitutional mechanism set-up for their uplift.Article 17 abolishes Untouchability.Article 46 requires the State ‘to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.Article 335 provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.Article 15(4) refers to the special provisions for their advancement.Article 16(4A) speaks of “reservation in matters of promotion to any class or classes of posts in the services under the State in favour of SCs/STs, which are not adequately represented in the services under the State’.Article 338 provides for a National Commission for the Scheduled Castes and Scheduled Tribes with duties to investigate and monitor all matters relating to safeguards provided for them, to inquire into specific complaints and to participate and advise on the planning process of their socio-economic development etc.Article 330 and Article 332 of the Constitution respectively provide for reservation of seats in favour of the Scheduled Castes and the Scheduled Tribes in the House of the People and in the legislative assemblies of the States.Under Part IX relating to the Panchayats and Part IXA of the Constitution relating to the Municipalities, reservation for Scheduled Castes and Scheduled Tribes in local bodies has been envisaged and provided.

 

9.1.2Part IX and Part IXA of the Constitution respectively permit the legislature of a State to make provision for reservation of seats in Panchayat and Municipalities in favour of backward classes of citizens.Article 340 of the Constitution provides for appointment of a Commission to investigate the conditions of Backward classes.Article 16(4) and 16(4A) respectively permit reservation of appointments or posts and in matters of promotion in favour of backward classes not adequately represented in the services under the State.Article 15(4) permits the State to make special provision for the advancement of any socially and educationally backward classes of citizen.In addition to these, there are also other Constitutional provisions for the welfare and socio-economic empowerment of the Scheduled Caste, the Scheduled Tribes and other backward classes.

 

 

9.2Fulfilment Of Constitutional Mandate – How Far?How Fair?

 

In spite of this manifest, avowed and determined concern of the Constitution, the objectives have not been fully achieved and whatever has been done has been done hesitatingly, half-heartedly and as a measure of concession forgetting that in this area we are dealing with Constitutional rights and not concession to those classes.

 

9.2.1.2It is instructive to examine how the socio-economic, legal and political factors inter-play to generate a particular matrix of social dynamics.The text of the Constitution created a lofty mix of Fundamental Rights and a set of Directives enjoining upon the State theobligation to promote and to secure to the citizens, the enjoyment of rights that provide the citizen an environment allowing his/her growth and development with social justice, equal opportunity, right to work and access to basic needs and opportunity without discrimination.While the text created a noble and a sanguine texture, the key players were the State, the legal system, the dynamics of social development and the social forces generated by the socio-political processes.The linkage between these players provides some explanations to the path that the nation has traversed in economic growth, social development and pursuit of equal justice.The processes of economic development do not necessarily lead to equitable income distribution.In fact, these often result in appropriation of national and social resources by a small percentage of the people.While over the years, the social services in the field of education, health, transportation and tertiary sectors have increased, there has been an inherent distortion in their universal access.Typically in this paradigm, the center has continuously appropriated access to every aspect of development of services and resources at the cost of vast periphery.Policy instruments loaded with different objectives produce a paradoxical regime of results, which is fairly seen in the areas where the Constitution assigned the role of basic font of delivery to the State.

 

9.2.1.3The legal regime also confronts us with paradoxes.While the legal text is explicit in seeking remedies, the implementation appears to evade performance.In implementation of laws and the working of the legal system several trends emerge.Laws and legal processes are not self executing; they depend on the players such as the administrative structure and its processes, the judiciary with the anticipation that the social attitudes are driven by enlightened notions -: equity, social justice, fair play.However, the responses of the players in the implementation of laws protecting the weak, the oppressed, women and children and the socially disadvantaged have over the years become increasingly indifferent.The injustices have been allowed to persist and the system has failed to provide for self-correction.In implementation and in interpretation of the Constitution and law, distortion and denial of the rights have crept in.

 

9.2.1.4A related issue of social dynamics is the opportunity and the access to the disadvantaged to take advantage of forums of the enforcement process and social mobilization.The polarization of castes and classes in the recent years across the society has shown disturbing trends, in as much as the administrative system, the judiciary, the legal processes reflect the social reality of a given area or region. Enforcement agencies have themselves responded to these urges for social protests and desire for enforcement using the legal and social processes with indifferences and indeed ostensibly with resistance.Increasingly it was shown that whereas processes were available to the disadvantaged, the weak, the oppressed, women and children, access was denied owing to its cost and remoteness.Even when the State created some shelters through various form of Legal Aid to Scheduled Castes, women and to the oppressed, they were reduced to tokenism owing to the quality and availability.Indeed, the higher levels in judiciary intervened with vigour against the injustice manifest in the system in the form of bonded labour, child labour, crime against the women and Scheduled Castes and tribals etc. It is pertinent to note that the legal and institutionalprocesses of redressal where provided are available only formally and have made a little or no impact.The disadvantaged sections of the society have difficult access even to the shelters and sanctuaries created for them under the law.The manner and frequency with which social protests have, in some cases,been snuffed out by the very system created to protect it, is revealing.This is the major challenge for the system which incorporates in its formal text the creation and the sustenance of a civil society.

 

 

9.2.2Untouchability and Atrocities

 

Article 17 of the Constitution abolished untouchability.The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent atrocities against the Scheduled Castes and the Scheduled Tribes.A glance at the number of cases registered under the Protection of Civil Rights Act, 1955 and the Scheduled Tribes (Prevention of Atrocities) Act, 1989(Table 9.1) shows that though total number of cases under these Acts show a declining trend in recent years yet the high number of cases still registered under these Acts is a grim reminder of the unfortunate fact that atrocities against the Scheduled Castes and the Scheduled Tribes and untouchability continue unabated even today.

 

Table No. 9.1

Number of Cases Registered under The Protection Of Civil Rights Act, 1955

And SC/ST (Prevention Of Atrocities) Act, 1989

 
Year

Scheduled Castes

Scheduled Tribes

Total Cases Registered

Cases registered under

Cases registered under

PCR Act

SC/ST POA Act

Total

PCR Act

SC/ST POA Act

Total

1997
1216

8070

9286

88

643

731

10017

1998
724

7443

8167

50

709

759

8926

1999
678

7301

7979

45

574

619

8598

Source:As compiled by National Human Rights Commission from monthly crime statistics

 

9.2.3Inadequate Representations In The Public Services

 

Adequate representations in the public services of Scheduled Castes and Scheduled Tribes is as yet another unredeemed constitutional pledge.The following tables show the representation of the members of Scheduled Castes/Scheduled Tribes in the services of the Central Government in the years 1961 and 1998:

 

Table 9.2

Percentage Of Representation Of

SCs/STs In Central Government Services

Group

(Excluding Sweepers)

Percentage of Scheduled Castes

Percentage of Scheduled Tribes

1961

 

1998

1961

1998

A

B

C

D

1.44

2.45

7.49

17.19

10.38

11.73

15.99

21.45

0.21

0.67

0.92

3.13

3.21

2.68

5.95

6.85

Source:Records of Ministry of Personnel, Public Grievances & Pensions, Govt. of India,

New Delhi.

9.2.3.2From the Table, it is clear that the adequate representation to Scheduled Caste and Scheduled Tribe in Group ‘B’ & Group ‘A’ posts in Central Govt. itself remains inadequate.Scheduled Tribes are not adequately represented in Group C and Group D services as well. Moreover, within Group ‘A’ at top echelons where decisions are taken, representation of the Scheduled Castes and the Scheduled Tribes is meagre and therefore, to that extent, representation shown by data for Group ‘A’ posts presents a distorted view of actual state of affairs.

 

9.2.3.3The efforts to ensure adequate representation for Scheduled Caste and Scheduled Tribe in higher levels of public services are perceived by the disadvantaged groups as having received a set back following certain judgements of the Supreme Court.In PreetiSrivastava’s case, a five Judge Bench of the Supreme Court held that there should be no reservation in admission in Ph.D., etc.The Medical Council of India was directed to consider the percentage of relaxation of marks for admission in post-graduation.In Vir Pal Singh Chauhan’s case and Ajit Singh’s case, the Supreme Court by two-Judge Bench and five-Judge Bench respectively held that reserved candidates promoted on applying the rule of reservation should not gain seniority until the general candidates catch them up.The elbow right given is only in cases where the reserved candidate had already been promoted to the next higher post.Article 16(4A), was interpreted as not creating a right for reservation in favour of either the Scheduled Castes or the Scheduled Tribes .It was further held that the reverse discrimination begins when protective discrimination ends.In Post Graduate Institute of Medical Institution & Research Center, Chandigarh Vs. Faculty Association case, it was held thatsingle post should not be reserved.

 

9.2.3.4Pursuant to judgements inSabarwal’s caseand Ajit Singh’s case, etc. Government has from time to time since 1996amended the departmental orders providing for reservation in services.These amendments have caused widespread dissatisfaction amongst Scheduled Castes/Scheduled Tribes.A feeling persists amongst them that in interpreting the words“consistently with maintenance of efficiency of administration” occurring in Article 335 of the Constitution, the main purpose and thrust of the provision has not been given due consideration.It is also complained that Government has also gone beyond the mandate of the Supreme Court in certain respects while amending the reservation orders.

9.2.3.5There have been demands for taking remedial steps by amendment to the Constitution so as to allay widespread dissatisfaction and apprehension amongst the Scheduled Castes and the Scheduled Tribes.Restoration of pre-1996 position has been suggested to be necessary for ensuring adequate representation of Scheduled Castes and Scheduled Tribes in public services as mandated by the Constitution.

 

9.2.3.6The Constitution (81st Amendment) Act, 2000 has by introducing Article 16(4B) removed the obstacles in the way of treating previously unfilled vacancies as a separate class of vacancies.Further amendments to the Constitution may benecessary in case the position of reservation as it existed prior to 1996 is to be fully restored.

 

9.2.3.7Reservation for other backward communities in Central services was provided only in 1990 and became operational from 1993 onwards.Sufficient statistical data are not yet available to draw any definite conclusions to the extent, their reservation has improved in the central services.The adequate representation of backward classes is, however, still a far cry and special efforts need to be made for effectively enforcing reservation of backward classes to achieve their adequate representation in central services.

 

 

9.2.4Declining Land Holdings and Increasing Landless Labourers

 

An overwhelming majority of Scheduled Castes and Scheduled Tribes live in rural areasandasubstantialpercentageofrural population live on cultivation.It is observed from Tables 9.3(A) & (B) that a large percentage of Scheduled Castes have marginal land holdings and average size of their land holding is the minimum amongst all social groups.It was 0.98hectare in 1990-91as against 1.05 hectares in 1985-86 and1.15hectaresin 1980-81.Itisfurtherobservedfromtable9.4thatthe

 

 

Table 9.3(A)

PercentageDistribution By Land Holdings Of Various Social Groups

In Various Years

 

S.No.

Size of Holding

Scheduled Castes

Scheduled Tribes

Others

1980-81

1985-86

1990-91

1980-81

1985-86

1990-91

1980-81

1985-86

1990-91

1

Marginal

68.9

70.7

72.2

39.8

41.3

43.4

56.2

57.5

59.1

2

Small

16.3

16.0

Home » Weaker Section and Minorities » Weaker Section and Minorities

Weaker Section and Minorities

The discriminations suffered by the oppressed sections of the society including SC and STs over great period of time has led to the concept of protective discrimination to safe-guard their interests. The main reason behind protective discrimination is to provide the necessary facilities to the deprived sections and to bring them to the mainstream society. These two classes were placed beyond the bounds of the larger society, the scheduled tribes on account of their isolation in particular ecological riches and the scheduled castes on account of the segregation imposed on them by the rules of pollution.

There are certain clauses in the constitution which aims at providing equality of opportunity to all by prohibiting discrimination and to remove disparities between privileged and underprivileged classes. However the state faced with the dilemma that this would mean that in the society characterized by the distinctions on the basis of caste, religion only who are better positioned than the rest would get all the benefits and the backward and repressed classes will remain sidelined. In order to overcome this, state has the special responsibility of giving equal rights to the communities through protective discrimination. There are many provisions in the constitution:

Art 15 (clause 3) which empowers the state to make any special provision for women and children.

Art 16 (clause 4) serves the same purpose for backward class citizens. There are several other articles which aim to remove disparity between different sections of the society. The constitution attempts to create balance between right to equality and protective discrimination.

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