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POSITIVE DISCRIMINATION

Written by: Aditya Sharma



INTRODUCTION


India being one of a democratic country, grant its citizens various rights and duties, enshrined under the Indian Constitution. Article 14 of the Constitution deals with the concept of equality before law to all its citizens. But India being a diverse nation supporting more than 2000 ethnic groups and almost all states and regions having their own culture and practices, cannot treat everyone equally aligning them on a same platform. Therefore, India follows concept of Equity i.e., treating equals equally or equality among equals. Because of this concept only, in India different classes like the normal classes who are well settled in the society are treated differently than the socially and educationally backward classes. For example, there are various provisions for education of socially backward classes like reservation, fee concession, etc. while these are not available for general people.


The word Discrimination means being treated unfairly or unequally on various grounds like age, religion and belief, race, caste, sex, or disability. Many people argue that this unequal treatment is discrimination but this is not the case. This concept of promoting backward classes is called Positive Discrimination. Positive discrimination is indeed a form of discrimination but done with an intention of promotion and upliftment of the underprivileged groups present in the society for their and the nation’s welfare.


Discrimination harms our society to a very large extent. Discrimination excludes a particular group of people from the society and force them to be away from social contacts. This not only just divides our society into various parts but also affects the unity of the society. On the other hand, positive discrimination, though being a form of discrimination, helps in upliftment of the non-represented and underprivileged classes.


POSITIVE DISCRIMINATION IN INDIA


Unlike some western countries, like United Kingdom, where discrimination in all its form whether positive or negative is illegal, India applies the concept of positive discrimination to a very large extent ranging from educational sector to jobs. In Educational sector also there are various quotas for the admission of students belonging from various castes and classes which are either not represented or are socially and educationally backward called reservation. In India there are many provisions for the upliftment of socially backward classes like article 342 of the Indian constitution, which says that the president or parliament can make laws for the upliftment of Socially and Educationally Backward Classes (SEBC). Establishment of National Commission for Backward Classes, and many more are also the steps taken by Indian Government towards their welfare.


One can infer that positive discrimination is legal and applicable in India unlike in United Kingdom and many other nations. Reservation gives marginalized group of people an opportunity and a platform to compete with the world at large. The most benefitted sector from reservation is the education sector, as now many students who once would not have an opportunity to study in a prestigious collage or school are now competing and getting in the top universities in India, which in one way or another is benefitting their whole class.


Many people argue against the idea of positive discrimination. They say that at the time of independence, our country was shattered into different groups because of princely states and provinces which created a lot of diversity in the country whether be it on linguistic basis, religion, race, caste, etc., giving reservation at that time was the best way to bring forward all ethnic and social groups because it provided all the groups a same level playing field with equal opportunities, to be at par with rest of the groups therefore reservation was a wise choice, but now since many of these classes are well settled reservation is not required. They also say that change is necessary for evolution, therefore, reservation also known as positive discrimination is not suited for India which in 2021 is competing to become a superpower and require people who possess skills and expertise, people who have the capability to change the world and in today’s India giving reservation is not advantageous rather discouraging qualified people to work as they do not get the Job, which they deserve, because of reservation. But they tend to forget that majority of the competing and skilled people may belong to these groups only, what they need is just one chance, and they will break the limits. Also, these people forget that only because of handful of people we cannot categorize the whole community as well settled. Many people see these classifications only on monetary basis but, money is just one aspect of it. These people are not just classified on monetary basis but on their social status, one may have money but if he does not have social status in the society the money is not worth. There are landmark judgements like Indra Sawhney & Others v. Union of India in which the Supreme Court fixed a ceiling of 50% upon reservation which in no case could be breached. The Supreme Court also in the same Judgement, excluded the creamy layer i.e., people belonging to backward classes but having income above a certain limit.


Legality is just one aspect, another question which comes into consideration is whether it is Ethical or not? Let’s suppose there is a company DEF Ltd., it has vacancy for the post of Manager, two candidates apply, one of them is more qualified, having all required skills, and with a work experience of 15 years. Another candidate is not as qualified as the earlier candidate, though have minimum qualifications required for the post, possesses all required skills, but do not have any work experience. He belongs to a socially and educationally backward class. The company has a policy of preferring backward classes and giving them opportunities. Therefore, the second candidate got selected. In this scenario if we look from a rational person’s viewpoint, we can clearly identify that the first candidate was much more suitable for the Job rather than the second candidate because the first one possesses more skills and experience which would in the long run benefit the company. But if we analyze closely, one will find that the first candidate would only benefit the company and himself but the second candidate is going to represent his whole community and is benefiting his whole community by giving them inspiration, representation and much more. This way the second candidate is indirectly advancing the whole society.


There are some negative aspects to positive discrimination, everything has, like sometimes some deserving people don’t get the benefits. There are always two sides of a coin. There are individuals who don’t get jobs but are qualified and skillful due to reservation. But looking this in a larger period of time, positive discrimination is more benefiting the society than having a negative impact on the society.


ANALYSIS AND CONCLUSION


Positive discrimination is a concept which was established with a purpose of upliftment of the people who are either unrepresented or are socially backward. Positive discrimination does serve its purpose well, it gives individuals an opportunity to stand and compete in the world by various means like reservation in jobs and educational sector. Positive discrimination, through means of reservation, not only just gives many socially backward students a platform to compete, gain merit and study in top level collages, but also provides an opportunity to working individuals to work under prestigious organizations and represent their whole community.


Positive discrimination and equality are both grounded on the same viewpoint, but positive discrimination is a convergent, whereas equality is divergent in nature. Ultimately, the purpose of both the approaches is to serve all individuals equally and without any discrimination. As a result, under the scope of Article 14, the Indian Constitution encompasses the concept of equity. Privileged status has been granted to individuals who require it in order to meet the same challenges as the privileged. At the very same time, in the current circumstances, there are instances where it is not accessible to people who are truly in need of them, and as a result, the inequality between minority and majority classes is growing by the day. Positive discrimination is a method that has some flaws, necessitating the use of effective techniques.


The honorable Supreme court in the judgement of State of Uttar Pradesh vs Dr Dina Nath Shukla & Anr[2] said that every citizen in India has a right to seek employment for any post, therefore, there should be a balance which is to be maintained between the general public and the backward classes. This indicates that there are laws for promotion and upliftment of backward classes and at the same time these laws also ensure that no right of a citizen is violated.


It can be concluded that positive discrimination is not negatively impacting our society rather benefiting a major portion of our society. Positive discrimination does have some negative aspects like many qualified persons do not get their desired job, but it is ultimately benefiting the whole society to progress. The concept of positive discrimination was introduced for the betterment of society by targeting a particular group of people who are socially backward and working for their upliftment which in turn would help whole nation to grow.


BIBLIOGRAPHY


1. Indra Sawhney Etc. vs Union of India and Others, Etc., (1993) S.C.C 477 (India).

2. State of U.P. v. Dina Nath Shukla (Dr), (1997) 9 SCC 662 (India).

3. Noon, Mike. “The Shackled Runner: Time to Rethink Positive Discrimination?” Work, Employment & Society 24, no. 4 (2010).

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