1.INTRODUCTION

Over a great period, a certain section of the society had always been suffering from oppression and exploitation of all kinds. The malady of social disparities crippled the underprivileged and downtrodden classes so intensely that they became economically disabled for generations after generations. The founding fathers of the Constitution dreamt of an egalitarian society that would be free from prejudice and discrimination. [1]

To achieve this goal, bringing social and economic justice was of utmost importance. Henceforth, the essence of equality was embedded in the provisions of the Constitution. The Constitution of India assures Equality to all its citizens. However, absolute equality is impractical for the Indian society is diverse with culture, language, religion, and geography, and so forth. Applying similar laws to all in all circumstances would only instigate inequality.[1]

"As long as poverty, injustice and gross inequality persist in the world, none of us can truly rest" --Nelson Mandela

Democracy can only thrive and flourish where the individuals in the society are treated equally and without discrimination. Thus, it was felt by the framers of the Constitution to incorporate such provision to remove the hurdle of existing social and economical inequalities and enable the diverse communities of the country to enjoy the rights and liberties guaranteed under the constitution.

Though absolute equality is not possible in the perspective of Indian society this thing was felt by the framers of the constitution and they introduced the policy of protective discrimination to achieve social justice in India. It aims at granting special privileges to the socially backward and underprivileged section of the society, most commonly the scheduled castes, scheduled tribes, other backward classes, and women.

The core of the equality theory appears to be the formula that states that each man should count for one and that no one should count for more than one. Therefore, it is assumed that treating each member of a class equally is natural or rational unless there is a compelling reason to do otherwise. However, putting the idea in this manner leaves important questions unanswered.

There is a lot of discrimination in every civic society. Discrimination exists in every community. Indian civilization is divided, caste-based, and hierarchically stratified from the beginning of time. A specific group of people has historically and even now routinely been denied access to fundamental human rights by others who consider themselves to be superior and privileged. On the other hand, legalized discrimination like apartheid, genocide, ethnic cleansing, and the worst kinds of slavery are examples of extreme types of prejudice. Despite being widespread and oppressive, discrimination based on caste, sex, ethnicity, and religion also encompasses prejudice and social exclusion at the institutional level, such as in workplaces, schools, and other similar settings. Political institutions and the socioeconomic system play a big part. Uneven treatment by these establishments had led to an imbalance.

2. MEANING OF PROTECTIVE DISCRIMINATION

Protective discrimination is the policy of granting special privileges to the downtrodden and the underprivileged sections of society, most commonly women. These are affirmative action programs, most visible in both the United States and India, where there has been a history of racial and caste discrimination. The practice is most prominent in India, where it has been enshrined in the constitution and institutionalized

3. IMPORTANT STATUTES

It is also important to note that the Supreme Court has defined the term "backward classes" in Article 16(4)[1] to refer to the "socially and educationally" backward in all of its rulings regarding reservations. Additionally, it stated that "economic backwardness" must be the result of social and educational backwardness and categorically rejected "economic backwardness" as the sole or primary reason for reservation under Article 16(4).[9] The Supreme Court has examined the real meaning of this phrase in several judgments, ranging from Balaji to Indira Sawhney.

Article 1 (4)[9] reads as: the state is not prevented from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Article 16 (4) reads: The state may make provisions for reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the state, is not adequately represented in the services under the state.

The term 'backward classes' has been used in the same sense as in Art. 15 (4) and includes scheduled castes and scheduled tribes. Those provisions form the crux of the egalitarian resolution sought to be sponsored by the framers of the constitution through the medium of fundamental right of equality. They represent the positive dimension of the claim of equality which enjoying the state 'to do' rather than prohibit it from doing something.

Such positive obligations obviously have limited application and not obligatory, depending much on the available resources and their allocation to this objective in the context of conflicting claims and demands secrecy, gratification and fulfilment.The compromise thought about the depressed classes, were assured of preferential treatment.The Government of India Act, 1935 went a little in this direction. The measures for upliftment of backward classes received ample consideration in the Constituent Assembly. The Constituent assembly gave concessions, privileges and certain rights because they are backward socially, economically and politically.

4. Ist AMENDEMENT OF THE CONSTITUTION

B.R. Ambedkar highlighted the significance of the first amendment to the Constitution of India in 1951, emphasizing its focus on the welfare of scheduled castes, tribes, and backward classes. This amendment empowered the state to take affirmative action for the advancement of socially and economically backward classes, and it placed restrictions on the application of fundamental rights for these purposes.

Ambedkar explained the necessity for amending Article 15 due to recent Supreme Court judgments from Madras. One case dealt with the reservation of backward classes in public service under Article 16(4), while the other concerned reservation for backward classes in educational institutions under Article 29(2).

The Supreme Court, in its rulings, noted that Article 29(2) did not contain a provision similar to clause 4 in Article 16. Clause 4 of Article 16 allows the government to make provisions for the representation of backward classes in services despite Article 16. However, such a provision is absent in Article 19. Regarding Article 16(4), the Court deemed it discriminatory based on caste, rendering it invalidan opinion that Ambedkar found unsatisfactory.

Ambedkar emphasized the importance of the word 'only' in Article 29(2), stating that it prohibits discrimination solely on the grounds of race, religion, or sex. He believed that this word does not exclude the possibility of making distinctions based on other factors not explicitly mentioned in the article. Ambedkar expressed disappointment that the word 'only' did not receive adequate consideration in the Court's judgment.

5. IMPORTANT JUDGEMENTS

(1) In M.R. Balaji v. State of Mysore [4], it was held that the caste of a group of persons cannot be the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is backward or not. The two tests should be conjunctively applied in determining backward classes: one, they should be comparable to the Schedule Castes and Schedule Tribes in the matter of their backwardness; and, two, they should satisfy the means test, that is to say, the test of economic backwardness laid down by the State government in the context of the prevailing economic conditions. Poverty, caste, occupation, and habitation are the principal factors contributing to social backwardness.

(2) In R. Chitralekha and Anr .v. State of Mysore[5] and Ors. and Triloki Nath v. J K State and K.C. Vasanth Kumar v. Karnataka: The apex Court explaining the meaning of Class observed that The quintessence of the definition of Class is that a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16 (4) of the Constitution

(3) In State of Andhra Pradesh v. P. Sagar[6], it has been observed that The expression "class" means a homogeneous section of people grouped because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class, a test solely based upon the caste or community cannot also be accepted.

(4) In Triloki Nath v. J K State (II) Shah, J[7]., speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for Article 16 (4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.

Another topic that needs to be addressed is whether the status of the impoverished groups in societywhether they are OBCs or SC/STscan ever truly improve without challenging the caste system itself. This was the central argument of the Gandhi-Ambedkar debate. Is it possible for the upper caste Hindus to eradicate the stigma that the underprivileged face via their generosity and grace, or must the underprivileged themselves earn it through their battleseven if those struggles turn violentto take ownership of it? Wouldn't it exacerbate caste divisions at the expense of societal cohesion if violence is a natural part of the situation? Whatever the case, it has been observed that the quota system.

6. CONCLUSION

The concept of protective discrimination, often referred to as affirmative action or positive discrimination, is a controversial yet complex issue aimed at addressing historical and systemic inequalities faced by marginalized groups. It goes beyond simply treating everyone the same, recognizing that past injustices have created uneven starting points, and requiring targeted measures to level the playing field.

Imagine a society where certain groups have suffered for generations due to discriminatory policies and societal prejudices. They may lack access to quality education, career opportunities, and even necessities. In such a context, simply treating everyone equally, without accounting for these entrenched disadvantages, would only perpetuate the existing inequalities.

These measures often face criticism for favouring one group over another, potentially infringing on the rights of individuals from non-disadvantaged groups. However, proponents argue that protective discrimination is not about creating new inequalities, but about rectifying existing ones. It's about giving historically disadvantaged groups a ladder to climb that was previously denied to them.

The goal of protective discrimination is not to create permanent dependence, but to provide a temporary boost to help marginalized groups overcome systemic barriers and achieve equal footing in society. Ideally, as these groups gain greater representation and access to resources, the need for preferential policies can eventually diminish.

The debate surrounding protective discrimination is complex and nuanced, with valid arguments on both sides. It's crucial to consider the specific context, historical injustices, and the potential impact of such measures on both disadvantaged and non-disadvantaged groups. Ultimately, the objective should be to create a society where everyone has a fair chance to succeed, regardless of their background or social standing.

This is just a starting point, and the topic of protective discrimination can be explored further from various perspectives, including specific case studies, ethical considerations, and potential long-term impacts. Remember, there's no easy answer, but engaging in informed and respectful dialogue is essential to finding solutions that promote a more just and equitable society.

[1] S K Noor," Right to Equality and Protective Discrimination",Legal Services India E- Journal

[2] Pallabhi Nath,"Protective Discrimination Under The Constitution", Aequitas Victoria, RA-PN-16,338 -345

[3] Constitution of India

[4] 1963 AIR 649, 1962 SCR Supl. (1) 439

[5]1964 AIR 1823, 1964 SCR (6) 368

[6]1968 AIR 1379, 1968 SCR (3) 565

[7] 1967 AIR 1283, 1967 SCR (2) 265

[8] Zaman Tahir," Protective Discrimination in Favour of Backward Classes Under The Indian Constitution",Legal Services India E- Journal

[9] Constitution Of India