EQUALITY AND RESERVATION
RIGHT TO EQUALITY & RESERVATION POLICY..
Equality comes under the fundamental rights and Fundamental Rights are the rights which are guaranteed by the constitution, given to the individuals against the STATE which can be inforced by the Court (Justiciable rights).
In that very fundamental rights, there is right to Equality comprises of Article 14, Article 15, Article 16, Article 16, Article 17, Article 18 dealing with Equality.
Article 14 (Equality Before Law And Equal Protection Of Law) :the STATE shall not deny any person's/individual's Equality before law or the equal protection of law within the territory of India prohibition of discrimination on grounds of religion, race, caste, sex and place of birth.
Here, the phrase Equality before law means there should not be any type of discrimination on the basis of the position/status in the eyes of law. And the phrase, equal protection of law means like should be treated like and unlike should be treated like i.e. reasonable discrimination is allowed.
Article 15 (General Bar On Discrimination/General Sense of Equality) : A fundamental right in Indian Constitution that prohibits the discrimination by the STATE against any citizen on grounds only of caste, religion, sex, race, and place of birth.
First of all know this fact that, Article 15, Article 16, Article 18(2), Article 19 and Article 29 are available only to the citizens and rest are available for both citizens as well as non-citizens.
According to Article 15, the STATE cannot discriminate any citizens only on the grounds of caste, religion, sex, race, and place of birth. Although, STATE can do reasonable discrimination apart from these all grounds, if it want.
General examples were also given where STATE cannot discriminate:
♦️Use of Public wells, tanks, rivers, and bathing ghats.
♦️Use of Public places, railways, places of public transport, roads etc.
But, this Article 15 is applicable only if that is fully/partially funded by the STATE which means it is not for the private properties.
In Article 15(1) and Article 15(2), there is given the negative connotation of discrimination in which STATE is told not to do any type of discrimination. But in Article 15(3), it has been portrayed that STATE can do/make special provision in the favour of women and children. So, it is also a discrimination but it is likely a positive discrimination where STATE is said to do something for women and children.
Article 16 : Gives the guarantee of Equality of opportunity in matters of public employment. (Here, the public employment portraits the image of Government jobs).
Article 16(1) : There shall be Equality of opportunity of all citizens in matters regarding to employment to any Office under the STATE.
Article 16(2) : No citizens shall, on ground only of religion, race, caste, sex, descent, place of birth and residence or any of them, be ineligible for, or discriminated against in respect or any employment or office under the STATE.
Here, in subclause (1) of Article 15, there is given the positive instructions to the STATE to give Equality of opportunity to every citizens. On the other hand, in subclause (2), the negative connotation or instruction is given to the STATE where it is said not to do discrimination on the grounds of caste, religion, race, sex, place of birth, descent and residence in public employment.
Also Read:
☀️42nd CA Act(mini constitution): https://indianpolitygriffin.blogspot.com/2021/01/42nd-constitutional-amendment-act-mini.html
☀️Rule of Law: https://indianpolitygriffin.blogspot.com/2020/12/rule-of-law-dicey-equality.html
☀️ centre-state relationship: https://indianpolitygriffin.blogspot.com/2021/01/centre-syate-relationship-legislative.html
Let's move back to the history in order to understand the reservation policy. Just after the independence, it had been listed that about 22.5% of the population are SCs/STs in India. The founding fathers also wanted to give Reservation in order to provide Level Playing Field but at that time India did not have sufficient finance. So, a direction was given to the STATE by adding Article 46 in DPSP by the founding fathers which portraits that
Article 46: Promotion of education and economic interests of schedule caste, schedule tribes and other weaker sections. The STATE shall promote with special care the educational and economic interests of the weaker sections of the people and I'm particular, of schedule caste and the schedule tribes and shall promote them from social injustice and all forms of exploitation.
Now, one case came CHAMPAKAM DORAIRAJAN Vs Union Of India Case, 1951. This case came into being when Champakam Dirairajan went to Madras University and asked for admission in MBBS then University replied her that there were no seat and the rests seats are reserved. After hearing this, Champakam Dirairajan filled a case in which she claimed that Article 15 i.e. no discrimination was not being followed.
In this case Union also claimed that there was Article 46 which had given us the instructions to do something for the upliftment of SCs/STs/other weaker sections of the society. So, in conclusion, there arised a conflict/direct conflict between Article 15 and Article 46 i.e. part III and part IV. At last, Supreme Court gave a beautiful judgement by telling that When there will be a conflict between part III and part IV or we can say fundamental rights and directive principles of state policy (DPSP), always part III wins as it deals with fundamental rights, it is Justiciable, guaranteed, etc....
After this judgement Nehru Government got stuck as they wanted to give reservation by Reservation Policy to promote Article 46. And for the first time Amendment in Indian Constitution was done, i.e. First Constitutional Amendment Act of 1951. Withthe help of this amendment, subclause IV was added to Article 15 i.e. Article 15(4) which portraits that STATE can make special provision for SCs/STs and other backward classes. One questions arrises:
Is Article 15(4) an exception to Article 15?
Then SC gives a very beautiful decision by telling that "NO" , Article 15(4) is not an exception. As Article 15 is primarily dealing with Equality i.e. right to Equality and from Article 15(4) we are ensuring Equal Playing Field to SCs/STs/Other Backward Classes so we are ensuring Equality.Hence, it is not an exception.
Equality is considered as a Basic Structure of Doctrine Of Constitution and is declared in Indira Sawhney Case popularly known as Mandal Commission Case.
Also go through the link : http://www.legalservicesindia.com/article/479/Reservation-&-principle-of-equality.html#:~:text=The%20concept%20of%20equality%20has,laws%20within%20the%20territory%20of
Article 17 (Abolition Of Untouchability) : Untouchability is abolished and it's practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence in accordance with law.
This Article 17 is available to the individual against the STATE as well as individual so, there is a seperate Law i.e. Protection of Civil Liberty Act, 1955 for the individual who violates Article 17.
Article 18 (Abolition Of Titles) :No title, not being a military or academic, shall be conferred by the STATE. So, it can be said that Dynastic Titles are not allowed with an exception of MILITARY and ACADEMIC TITLES....
Comments
Post a Comment