Does our Constitution favour the hegemony prevalent in the hierarchy of social systems, in disguise of affirmative action? Is the State competent enough to provide for a symbiotic relief combining the demands of economic and social inequalities? Is the State Constitutionally empowered to separate the conjoined-homogenous section of the society based on a criteria that was not foreseen by the framers?
Introduction
Article 16(1) and 16(4) of the Indian Constitution provide for affirmative action by the State to regulate equal and fair representation of the socially repressed class, prevalent because of the stringent caste hierarchy in the Country. Substantive equality provides for the aspect of implementing equality for the unequals, unlike formal equality, which ignores structural discriminations, focusing on equality in Law, not reality.
What is positive discrimination?
Positive discrimination is an enabling provision, which was highly regulated in the early 1950s as laid down in the cases of Champakam Doirairajan and M R Balaji, which triggered the First Amendment and also capped of reservations at 50% unrigidly. It is the case of Indra Sawhney v. Union of India, where the Court established a formal, rigid cap of 50% reservations for socially disadvantaged groups, as per the findings of the Mandal Commission. This was a historic judgement that did take into account the reality of the society where the Creamy Layer incorporated on excluding the economically advanced OBCs from claiming double benefit. In the next landmark case of EV Chinnaiah, where the Court struck down the claim of wanting sub classification within the SC/ST community, stating that they are a homogenous community, and the prospect of analysing whether the backwardness was really apparent in every person of the community was disregarded. The true essence of such substantive equality was established in State of Punjab v. Davinder Singh, overruling EV Chinnaiah, permitting the sub-classification of SC/ST communities. The main contention, focusing on the internal heterogeneity, paved the way for the most backward classes in the backward class to attain substantive equality. The notion that economic wellness would equate, the socially and historically distressed section of society is a pressing question of the hour. How can the State differentiate internal-sub sections of a backward community and strip them off of their social privilege on the grounds of having self-sustainable funds, when the provision of reservation was to compensate for the social injustices faced by such marginal communities? Does monetary wellness account for social ostracization for centuries?
Hegemionial Effect on SC-ST communities and other backward classes of the society:
The allowance on sub classification of the SC/ST community is fundamentally divisive in nature, embodying the creamy layer principle. A person from a distinguished backward community, landing a job in the better respectable sector, would nullify him from the societal ostracization and therefore he and his family is exposed to a better sphere of opportunities. Thus, allowing this person to claim privileges under reservations would deprive a more disadvantaged person of this benefit.
Another key debate lies on the exclusion of the SC/ST community from claiming benefits under the EWS provision, as laid down in the case of Janhit Abhiyan v. UOI, and extending the 50% cap on reservations. As per the clarifications from the Hon’ble Court, economic reservation is a distinctive category that addresses economic backwardness as opposed to social backwardness, overruling the traditional caste -based reservations, paving a way for underscoring the current standards of the society, which is almost independent of the status that the person receives through birth and more about merit and economic sustenance.
Concluding Remarks
Historically, the caste system emerged out of a hierarchy in occupations, and the lowliness of the person continued by virtue of birth, irrespective of the fact whether he followed the downgraded occupation or not. In the current time, the State has tried to bring about a level playing field in terms of poverty, and equal access based on merit, rather than casteism, because of the reality that most of the public employment is filled up with the affluent sections of the backward community, undermining the core principle of substantive equality. Therefore, it is highly relevant to implement provisions to enhance equal access to the actual sector of the society that is aggrieved by inequalities, disjointed from social oppression, irrespective of their caste, creed, or class, thereby upholding the vision of our founding fathers and mothers.
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