Article 15(2) and a Constitutional Civil Rights Act

Gautam Bhatia

Article 15(2) and a Constitutional Civil Rights Act

Abstract

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 term "affirmative action" has different meanings and definitions which flow, and are derived from an individual's view of the legitimacy of the use of race-conscious or sexconscious preferential remedies for unlawful discrimination. Alternative terminology used to define or describe affirmative action includes but is not limited to "reverse discrimination", "affirmative discrimination" or "quotas" as in the Indian context. 2 White Paper GN 564 in GG 18800 of 23 April 1998. 3 Turner Past and Future 1. 4 Hodges We Want Jobs. T DEANE PER/PELJ 2009(12)1 29/166 show that if affirmative action measures and/or discriminatory measures are not properly thought out then affirmative action becomes burdensome and even more discriminatory rather than a means of achieving equality and redressing past wrongs. One might ask what benefit this analysis of the aspects of the Indian constitution dealing with affirmative action policies has for the South African context. An analysis of the political, legal and constitutional systems of other countries is very relevant. It helps to promote a better understanding of a country's own situation and assists in a proper evaluation of one's own institutions. It also assists in the interpretation of constitutions and help to enforce human rights. 5 Further, whenever there is a controversial topic like affirmative action, which poses a great deal of difficulty, such a problem can be solved with the help of a comparative study. 6 5 This information originally appeared in Ginsburg 2000 Brookings Review 3, and is drawn from the Cardozo Lecture given by Justice Ginsburg at the Association of the Bar of the City of New York on 11 February 1999. 6 Bhandari Basic Structure 110. This study will also be useful in that the experiences in India may be helpful in informing South Africa of the future and long-term consequences of affirmative action. Therefore this study of the relevant constitutional provisions relating to equal opportunity in this country becomes important. This approach becomes useful in that experiences in one country will help enrich another country to learn from such practices. However, it must be cautioned that when a country is looking at the experiences of other countries, the specific history of its own country must be born in mind together with the remedies and aims that its constitution wants to achieve. Therefore, even though South Africa will do well to look beyond its own borders when implementing affirmative action programmes it should do so with circumspection, taking into account its own specific history. T DEANE PER/PELJ 2009(12)1 30/166 2 Beginnings of discrimination in India-the Caste System There are many other countries and nations that are characterised by inequalities including social inequalities but in India these inequalities are highly structured in the form of caste. Caste has existed in India for such a long time and has undergone considerable change but it still involves millions of people. The continuation of superiority and inferiority by reason of ones skin colour, religion and economic and social status is a worldwide phenomenon. The caste system was not the creation of a single person like the raja (king). To a certain extent it developed out of a system of social practice that became a norm or way of life over several thousands of years. The issue of caste is a very complex and complicated one. Caste is perceived as "an exclusively Indian phenomenon which is not paralleled by any other institution elsewhere in its complexity, elaboration and inflexibility". 7 Kroeber describes the caste system as a "system of social stratification, examples of ranked aggregates of people, that are usually rigid, birth-ascribed, and permits no individual mobility". 8 In the caste system everyone is classified. The castes, like the system of apartheid and racial discrimination, teach us a fundamental social principle; hierarchy. 9 There are many and varied theories about the establishment of the caste system. These include religious, biological and historical theories. This classificatory system assumes that certain traits, qualities, functions, characteristics or powers are inherent in and definitive of each of the varnas. This system of caste is enormously complicated and not easily understood. The following paragraph attempts to simplify the issue of caste so as to give the reader an understanding of how the system works. 10 7 Searle-Chatterjee and Sharma Contextualising Caste. 8 Kroeber "Caste". 9 Ghurye Features of the Caste System. According 10 The biological theory of the caste system claims that all existing things have essentially three qualities in different ratios. Sattva qualities include wisdom, intelligence, honesty, goodness and other positive qualities. Rajas include qualities like passion, pride, valour and other passionate qualities. Tamas qualities include dullness, stupidity, lack of creativity and other negative qualities. People with different doses of these inherent qualities T DEANE PER/PELJ 2009(12)1

India, a great union, is also a country of paramount diversities. While as the unity led its freedom from the clutches of imperialism, the diversities continued to pose some serious threats to the federal structure and to the lofty Constitutional goals like liberty, equality, fraternity and justice. Nevertheless, the country set on the daunting task to mitigate the differences grounded on caste, class, race, region and religion. Called by positive or protective discrimination, or known by affirmative action or compensatory justice, everywhere the motto was clear to promote a world which harbours pluralism and guarantees the distribution of benefits and burdens in such a way that the sufferings and inflictions that have been rooted in the historically discriminatory practices are mitigated. Considering the extent of diversities, in this second most populous country of the world, indeed this is a highly commendable endeavor. Suri (Suri, 2014) states that, "India is the only democracy in the world that made explicit constitutional and legal provisions for compensatory discrimination, popularly known as reservations, for the advancement of the historically depressed and socially backward sections of the society." Nonetheless there were challenges, more within than outside the state, about the unity and integrity of the state and its subjects. To some extent, the speculations were put to rest by witnessing the outcomes of the policies and programmes implemented in this regard. However, the ground realities of these policies, now-a-days highlight the murkier side also. In this backdrop, the paper analyses the issues of identification and welfare process emanating from the policy to the castes and classes which are distributed in Scheduled Castes (SCs) and Other Backward Classes (OBCs) categories in the country. 2. INDIAN SOCIETY: INEQUALITIES: India, the seventh largest country by area and the second most populous county of the world with a population of 1,210,854,977 1 persons, is the largest democracy of the world. This population as shown by Census 2011 constitutes 17.5% 2 of the world's population which crossed the 7 billion mark on 30 th October, 2011, accounts for only 2.5% of the total land area of the world. It has long been reckoned as the most stratified of all known societies in human history(Dipankar Gupta, 1991). It is one of the oldest civilizations of the world having deep and elaborate socioeconomic , cultural, linguistic and religious diversities. This complex and diverse civilization is believed to be the compendium of the famous races viz. Aryans, Dravidians and Mongols with their respective socio cultural 1 Census Report 2011, Government of India 2 www.worldometers.info/world-population/india-population Accessed on 16-05-2015

Log In

Article 15(2) and a Constitutional Civil Rights Act

Sign up for access to the world's latest research

Abstract

Related papers

Related topics