Right to equality: Privatization and its impact on affirmative action.

RIGHT TO EQUALITY

Right to equality is embodied in a series of articles from Article 14 to 18 of the Constitution of India. Article 14 contains the principle of rule of law and Articles 15, 16, 17 and 18 contain the application of this principle. The Preamble to the Constitution of India provides for equality of status and opportunity. Equality forms part of the basic structure of the Constitution of India.

Article 14 reads as, ‘the State shall not deny to any person equality before the law and equal protection of laws within the territory of India’.

There are two expressions used in Article 14-

Equality before the law, and
Equal protection of the laws.

Both these expressions sound similar but have different connotations.

Equality before the law (Article 14)

Defination – According to Dr. Jennings ” Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, Social status or political influence.

Article 14 treats all people the same in the eyes of the law.

This provision states that all citizens will be treated equally before the law.
The law of the country protects everybody equally.
Under the same circumstances, the law will treat people in the same manner.
It is a rather negative notion in that it is a proclamation of equality of all persons inside the territory of India, meaning the absence of any privilege in favor of any individual based on birth, creed, or other factors.
The concept of Equality Before law, on the other hand, does not imply total equality for everybody. Article 14 assures treatment that is comparable but not identical.
Example: If a normal citizen or a government official murders someone, they will both be punished in the same way, and the penalty will be the same, which implies the same law will apply to both of them.

RULE OF LAW

Dicey wrote ” every official from the prime minister down to constable or a collector of taxes in under the same responsibility for every act done without legal justification as any other citizen.

Decey gave Three meanings of the Rule of law:

Absence of arbitrary power or supremacy of the law – It means the abosulute supremacy of law as opposed to the arbitrary power of the government. In other words – a man May be punished for a breach of law, but he can be punished for nothing else.
Equality before the law – It means Subjection of all classes to the ordinary law of the land administered by ordinary law courts, This means that no one is above law with the sole exception of the monarch who can do no wrong everyone in England.
The constitution is the result of the ordinary law of the land – It means that the sources of the right of individuals is not the written constitution but the rules as defined and enforced the courts

It means that the laws apply in the same manner to all, regardless of a person’s status. This is called the rule of law. Rule of law is the foundation of any democracy. It means that no person is above the law. There cannot be any distinction between a political leader, government official and an ordinary citizen.

Every citizen, from the Prime Minister to a small farmer in a remote village, is subjected to the same laws. No person can legally claim any special treatment or privilege just because he or she happens to be an important person. For example, a few years ago a former Prime Minister of the country faced a court case on charges of cheating. The court finally declared that he was not guilty. But as long as the case continued, he had to go to the court, give evidence and file papers, just like any other citizen.

Equal Protection of Laws

The concept of “equal protection of laws (EPL)” comes from the United States Constitution.
It means that the law should be applied equally and fairly to all people. As a result, it is a positive concept that implies the right to equal treatment under the same circumstances.
As a result, Equal Protection of Law necessitates affirmative action by the state in the face of inequity. Thus, Article 14 allows for acceptable categorization, and the notion of equality allows for logical discrimination.
In brief, equals must be treated equally, and unequals must be treated unequally, according to the Supreme Court, where equals and unequals are treated differently.
Example: Special seating for women in buses, trains, and metros is not unconstitutional.

Difference between Equality before the law and Equal Protection of laws.

Prohibition of discrimination (Article 15)

This article prohibits discrimination in any manner.

No citizen shall, on grounds only of race, religion, caste, place of birth, sex or any of them, be subject to any liability, disability, restriction or condition with respect to:
- Access to public places
- Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the general public
The article also mentions that special provision can be made for women, children and the backward classes notwithstanding this article.

Equality of opportunity in matters of public employment (Article 16)

Article 16 provides equal employment opportunities in State service for all citizens.

No citizen shall be discriminated against in matters of public employment or appointment on the grounds of race, religion, caste, sex, place of birth, descent or residence.
Exceptions to this can be made for providing special provisions for the backward classes.

Abolition of untouchability (Article 17)

Article 17 prohibits the practice of untouchability.

Untouchability is abolished in all forms.
Any disability arising out of untouchability is made an offence.

Abolition of titles (Article 18)

Article 18 abolishes titles.

The State shall not confer any titles except those which are academic or military titles.
The article also prohibits citizens of India from accepting any titles from a foreign State.
The article abolishes the titles that were awarded by the British Empire such as Rai Bahadur, Khan Bahadur, etc.
Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.

AFFIRMATIVE ACTION

The term ‘Affirmative’ action has been used since the early 60s when President Kennedy employed it in Executive order to describe public policies intended to over come the present effects of past racial discrimination.

Also know as the preferential treatment or reverse discrimination, affirmative action is based on arrangements, whereby the law sanction special measures or differences in treatment that, when certain conditions exist, depart from the differences in treatment that, when certain conditions exists, depart form the principle of formal equality.

Usually, such special measures aim at protecting, or promoting the welfare of the members of a group previously discriminated against, provided that the group desires such measures.

Equality and Affirmative Action

The Constitution of India provides for Right to Equality and equal protection of law (art 14) to all, protects its citizens from any form of discrimination on the grounds of religion, sex, caste, race and place of residence (art 15) and ensures equality of opportunity in public employment (art 16).

But this Doctrine of Equality is not absolute, the Constitution talks about ‘Equality among equals’ and allows the State to make classification among citizens on the basis of intelligible differentia for the purposes of social welfare and reform.

The State derives its power for making special provisions for favoured treatment of certain classes in Article 15(3) and 15(4). Article 15(3) allows the State to make any special provision for women and children.

Article 15(4) of the Constitution reads , “that nothing contained in the said Article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.

Article 16(4) allows the State to make reservations in public employment, “Nothing in this article shall prevent the State from making any provision for the 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 Directive Principle Article 46 highlights the duty of the government to promote the interests of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and exploitation.

Thus, the Constitution of India does not propagate the idea of uniform or identical treatment but the various provisions under Article 15 and Article 16 ensures a more nuanced and progressive idea of ‘Equality’.

CASE LAWS

In the case of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 the court clarified that Articles 15(4) and Article 16(4) are not exceptions to Articles 15(1) and 16(1) respectively.

A nine judge bench in Indra Sawhney v. Union of India, 1992 (Supp) 3 SCC 217 , upheld the principle that Articles 15(4) and 16(4) were not exceptions to Articles 15(1) and 16(1), but were an emphatic statement of equality. The scheme of the Constitution provides for mechanisms through which a society based on ‘real’ equality can be established and inequalities can be eliminated through equalising measures.

Reservation in Elected government seats

In their attempt to secure proportionate representation of minorities or backward classes in National as well as State governments, the Constituent Assembly introduced certain provisions in the Constitution that provided for Reservation of seats in Parliaments and State legislatures for Scheduled Castes (SCs) and Scheduled Tribes (STs). The Articles 330 and 332 of the Constitution provide for reservation of seats in Parliament and State legislature based on the proportionate population of these groups in the State concerned. Seats for Scheduled Tribes are reserved in the autonomous regions of Assam. Article 331 allows the President to nominate members of the Anglo-Indian community to the House of People if he is satisfied that they are not adequately represented.

These reservations were supposed to be for a period of twenty years as per Article 334. But owing to the level of under-representation and backwardness of these classes and sometimes for political reasons the period has been extended through multiple consequent amendments to the Constitution. The latest being 104th Amendment to the Constitution (2020) which extends reservation for more ten years for Scheduled Caste and Scheduled Tribes to Lok Sabha and State Assemblies.

Reservation of seats is also provided in local governments and also for women. Article 243 D provides reservation of seats for Scheduled Tribes in Panchayats. Article 233T provides reservation of seats for SCs and STs in every Municipality. The 73rd Constitutional amendment which introduced the Panchayati Raj system in the country also included the provision for reservation of 33% seats for women in Panchayati Raj institutions throughout the country. In some states this quota has been increased to 50% for women.

Reservation in Promotions

In 1992 the Supreme Court in the Indra Sawhney case declared that Article 16(4) does not allow for Reservation in promotions in public offices. It read the provision with Article 335 of the Constitution which provided that the claims of the SCs and STs need to be considered consistently with the maintenance of efficiency in the administration which cannot be undermined. But the court upheld reservation in direct employment even in higher levels of administration. The parliament wished to change this and introduced Article 16(4A) via the 77th Amendment to the Constitution in 1995. Further the reservation in promotions were extended to members of SCs and STs and the principle of Consequential seniority was introduced by amending Article 16(4A) via the 85th Amendment in 2001. These amendments were challenged in the court in the Nagraj case (2006) on the grounds that they violated the principles of equality. The amendments were upheld by the court in this case as well as in other judgements and thus SCs and STs enjoy affirmative action not only in direct employment but also in promotions to higher levels in public offices.

The Indra Sawhney judgement inter alia also declared a 50% ceiling on reservations in educational institutions and public offices to maintain a balance between equality and social justice. But the 81st Amendment to the Constitution which introduced Article 16(4B), enabled the State to carry forward the unfilled vacancies of a year which are reserved for SCs/STs, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year. Such attempts made by the Parliament are a reason for growing unrest against affirmative action and reservation for backward classes in the country.

Reservation for Economically Weaker Sections (EWS)

The 103rd Constitutional Amendment is a recent and first attempt by the government to provide for an additional 10% reservation to individuals belonging to economically weaker sections as decided by the parliament on the basis of family income, land holdings and other relevant factors. It has introduced Article 15(6) to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions and Article 16(6) to extend the benefits of reservations to EWS in government posts. Article 15(5) already allowed the State to enact measures relating to admission to education institutions to secure Right to Education to any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes but this excluded the category of EWS.

AFFIRMATIVE ACTION IN PRIVATE SECTOR IN INDIA

The demand for affirmative action in private sector emanates from the fact that this would enable participation of the weaker section in employment and market, since they suffer multiple discriminations. The liberalization, privatization and globalization process are ushering in the power of markets. Privatization has further marginalized the weaker sections by reducing the scope of available in public sector, since the public sector itself is being disinvested.

The significant fact is that according to the Industrial Act 1948, 18 sectors were reserved as public sector enterprises. Over the years, these have been also converted in to private sector and now a very less of these remains as public sector. This has directly and definitively given a death blow to the Dalits and the tribals in terms of job opportunities.

There is another fundamental reason due to which reservation in private sector is being demanded. That is, in the name of rightsizing and optimizing by the Government, employment rate is on the decline. Given the discriminatory and exploitative social milieu, the Dalits and the Tribals are the one who would be victims of this process. There was a decline of job opportunities. This is notwithstanding the loss of opportunities in the State Governments. It is this social fact that has driven the Dalit and human rights activists to demand for reservation in private sector.

In response to this contention, those calling for affirmative action in private sector argue that since the reservation policy is not implemented, it is all the more necessary to demand for its implementation, and also for reservation in the private sector. Keeping this fact in mind, the National Commission for Scheduled Caste and Scheduled Tribes has recommended, “It is essential to workout short-term and long-term measures to increase the representation of the Scheduled Caste and Scheduled Tribes.

The State should make special efforts to make up the shortfall in the reserved ‘quotas’ by taking steps such as special training and coaching for Scheduled Castes and Scheduled Tribes, passing of Central legislations to enforce reservation in Government Services and Public Sector Enterprises, Banks, Universities, Grant-in-aid bodies, etc.

Providing reservation in public Sector would automatically rise the issue of implementation of reservation in the Private Sector, and thus, both these processes would lead to the inclusion of the excluded communities. It is also a fact that the Private Sector continues to be one of the major sources of employment. And the Private Sector with its every increasing role will be the chief employer in the time to come and reservation in Private Sector should be initiated at once.

Foreign investors are investing in the private sector via purchasing their share; this is possible because of the policies of the Government. And thus, it is expected form the Private sector that they should fulfil their social responsibility. Private sector uses public money via public financial institutions; even then, there is no reservation to SCs and STs and OBCs in the private sector.

Uplifting of the weaker section is a stated objective of our Country and thus, reservation in Private Sector is part of social responsibility of the Government, as well as the Private Sector. It is nothing, but the fulfilment of the Constitutional agenda of distributive justice enshrined in various articles and clauses of the Constitution. If the Private Sector does not fulfil its social responsibility, then the Government should make such provisions by initiating legislative measures.