Reservation and Right to Equality

In early 2014, it was widely reported that the Indian government had proposed the setting up of an “Equal Opportunities Commission”, [“EOC”] in response to the report of the Sachar Committee. The task of the EOC, like its counterparts in the United States and European countries , would be to check discrimination against minority communities in employment, education, accommodation and so on. After the 2014 election, little has been heard about the EOC, and it would perhaps be safe to assume that it has been shelved for the foreseeable future. In this paper, I will address the core issue that necessitates the existence of an EOC. This is the problem of horizontal discrimination, i.e., discrimination suffered by private entities at the hands of other private entities (individuals or corporations), on the basis of constitutionally proscribed markers: sex, race, caste, religion, place of birth etc. I will argue that in contrast to countries like the United States, where horizontal discrimination had to be tackled by federal government legislation (such as the Civil Rights Act ), the Indian Constitution contains the tools to address horizontal discrimination within its fundamental rights chapter - specifically, under Article 15(2) of the Constitution.

The definition of the expression "the State" in Article 12, is however, for the purposes of Parts III and IV of the Constitution, whose contents clearly show that the expression "the State" in Article 12 as also in Article 36 is not confined to its ordinary and constitutional sense as extended by the inclusive portion of Article 12 but is used in the concept of the State in relation to the Fundamental Rights guaranteed by Part III of the Constitution and the Directive Principles of State Policy contained in Part IV of the Constitution which principles are declared by Article 37 to be fundamental to the governance of the country and enjoins upon the State to apply making laws.

Discusses the Indian Supreme Court's jurisprudence on unconstitutionality challenges against statutes for violation of the right to equality

Law Exam Times, 2019

The definition of State, given in Article 12 of the Constitution of India, is applicable to Part-III (Fundamental Rights) and Part-IV (Directive Principles of State Policy). Article 12 mentions that unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Further, Article 36 says that in this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III. The present Article 12 of the Constitution (Article 7 of the Draft Constitution) was introduced and debated in the Constituent Assembly on the 25th of November 1948. While initiating a debate on this Article in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar described the scope of this Article and the reasons why this Article was placed in the Chapter on fundamental rights as: The object of the fundamental rights is twofold. First, that every citizen must be in a position to claim those rights.

A common debates in Indian is to equate affirmative action with the reservation of seats in academic institutions and the reservations of posts in public employment. This popular misunderstanding was entrenched in the 1990s with the intense media focus on the Mandal Commission's Recommendations. Marc Galanter's socio-legal study of affirmative action programmes in India-titled 'Competing Equalities' 3-provides us with a broad typology of the nature of programmes being pursued to advance the interests of the lower and weaker castes. These programmes range, besides the current reservations model, from the preferential allotment of petrol bunks and other state assistance to scholarships and the construction of hostels for lower-caste students. Debates on affirmative action often ignore the reservation of seats in different levels of government for women and Scheduled Castes and Scheduled Tribes, which are arguably the most important programme currently in operation. Thi...