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Q. Comment on the provisions of the constitution conferring special protection on SCs, STs, women, children and older persons (weaker sections). In your opinion, to what extent should they be given reservation? Is reservation a constitutional right?

The vision of the formulators of the Indian Constitution was to develop India into a socialist state. A socialist state is the one that protects and uplifts its weaker sections. It strives to reduce the social and economical inequality between the people. To achieve this goal, our constitution has incorporated several provisions that are in the benefit of the weaker sections of the society. Based on these provisions the central and state governments implement plans or frame laws to turn this vision into reality.

What are weaker sections

Due to the caste system prevailing in India, the sudras have been exploited for the ages. They were denied the right to education and thus were left languishing behind, socially and economically. Such people have been categorized into Scheduled Castes.  Tribal communities, who never mixed with the main society, are similarly challenged and are categorized into Scheduled Tribes.

Backward Classes
The constitution does not define the term backward classes. It is up to the center and the states to specify the classes that belong to this group. However, it is understood that classes that are not represented adequately in the services of the state can be termed backward classes. Further, the President can, under Art. 340, can constitute a commission to investigate the condition of socially and educationally backward classes. Based on this report, the president may specify the backward classes.

Historically, the condition of women in India has also been very bad. They have always been treated as second class citizens and did not have any decision making power and lacked in education. Due to the social structure in India, there is a marked prejudice against women in every field.

Other groups of people who are severely disadvantaged are children, older people (senior citizens), and people with disability.

Provisions for weaker sections
The constitution has adopted the principle of Compensatory Discrimination to uplift the weaker sections. Under this principle, the constitution has made provisions that compensate these sections by discriminating in favor of them for past wrongs. The following are the various provisions provided in the constitution for this purpose:

For SCs/STs

Art. 15(4) :  Clause 4 of article 15 is the fountain head of all provisions regarding compensatory discrimination for SCs/STs. This clause was added in the first amendment to the constitution in 1951 after the SC judgement in the case of Champakam Dorairajan vs State of Madras AIR 1951. It says thus, "Nothing in this article or in article 29(2) shall prevent the state from making any provisions for the advancement of any socially and economically backward classes of citizens or for Scheduled Castes and Scheduled Tribes." This clause started the era of reservations in India.

In the case of Balaji vs State of Mysore AIR 1963, the SC held that reservation cannot be more than 50%. Further, that art. 15(4) talks about backward classes and not backward castes thus caste is not the only criterion for backwardness and other criteria must also be considered.

Finally, in the case of Indra Sawhney vs Union of India AIR 1993, SC upheld the decision given under Balaji vs State of Mysore that reservation should not exceed 50% except only in special circumstances. It further held that it is valid to sub-categorize the reservation between backward and more backward classes. However, total should still not exceed 50%. It also held that the carry forward rule is valid as long as reservation does not exceed 50%.

Art. 15 (5) : This clause was added in 93rd amendment in 2005 and allows the state to make special provisions for backward classes or SCs or STs for admissions in private educational institutions, aided or unaided.
Art. 16(4): This clause allows the state to reserve vacancies in public service for any backward classes of the state that are not adequately represented in the public services.
Art. 16 (4A): This allows the state to implement reservation in the matter of promotion for SCs and STs.
Art. 16(4B): This allows the state to consider unfilled vacancies reserved for backward classes as a separate class of vacancies not subject to a limit of 50% reservation.

Art. 17:  This abolishes untouchability and its practice in any form. Although the term untouchability has not been defined in the constitution or in any act but its meaning is to be understood not in a literal sense but in the context of Indian society. Due to the varna system, some people were relegated to do menial jobs such as cleaning toilets. Such people were not to be touched and it was considered a sin to even touch their shadow. They were not even allowed to enter public places such as temples and shops. The constitution strives to remove this abhorring practice by not only making the provision a fundamental right but also allows punishment to whoever practices or abets it in any form. Towards this end, Protection of Civil Rights Act 1955 was enacted. It has implemented several measures to  eradicate this evil from the society. It stipulates up to 6 months imprisonment or 500 Rs fine or both. It impresses upon the public servant to investigate fully any complaint in this matter and failing to do so will amount to abetting this crime. In the case of  State of Kar. vs Appa Balu Ingle 1993, SC upheld the conviction for preventing a lower caste person from filling water from a bore well.
In Asiad Projects Workers Case 1982, SC has held that right under Art 17 is available against private individuals as well and it is the duty of the state to ensure that this right is not violated.

Art. 19(5): It allows the state to impose restriction on freedom of movement or of residence in the benefit of Scheduled Tribes.

Art. 40: Provides reservation in 1/3 seats in Panchayats to SC/ST.
Art. 46: Enjoins the states to promote with care the educational and economic interests of the weaker sections, specially SC and STs.

Art. 164: Appoint special minister for tribal welfare in the states of MP, Bihar, and Orrisa.

Art. 275: Allows special grant in aids to states for tribal welfare.

Art. 330/332: Allows reservation of seats for SC/ST in the parliament as well as in state legislatures.

Art. 335: Allows relaxation in qualifying marks for admission in educational institutes or promotions for SCs/STs.
In the case of State of MP vs Nivedita Jain AIR 1981, SC held that complete relaxation of qualifying marks for SCs/STs in Pre-Medical Examinations for admission to medical colleges is valid.

Art. 338/338A/339: Establishes a National Commission of SCs and STs.  Art. 339 allows the central govt. to direct states to implement and execute plans for the betterment of SC/STs.

Art. 340: Allows the president to appoint a commission to investigate the condition of socially and economically backward classes and table the report in the parliament.

For women

Art. 15(3): It allows the state to make special provisions for women and children. Several acts such as Dowry Prevention Act have been passed including the most recent one of Protection of women from domestic violence Act 2005.
Art. 23: Under the fundamental right against exploitation, flesh trade has been banned.
Art. 39: Ensures equal pay to women for equal work.
In the case of Randhir Singh vs Union of India 1982, SC held that the concept of equal pay for equal work is indeed a constitutional goal and is capable of being enforced through constitutional remedies under Art. 32.
Art. 40: Provides 1/3 reservation in panchayat.
Art. 42: Provides free pregnancy care and delivery.
Art. 44: It urges the state to implement uniform civil code, which will help improve the condition of women across all religions. It has, however, not been implemented due to politics. In the case of Sarla Mudgal vs Union of India AIR 1995, SC has held that in Indian Republic there is to be only one nation i.e. Indian nation and no community could claim to be a separate entity on the basis of religion.

There is a plan to provide reservation to women in parliament as well.

For children
Art. 19 A: Education up to 14 yrs has been made a fundamental right. Thus, the state is required to provide school education to children.
In the case of Unni Krishnan vs State of AP AIR 1993, SC held that right to education for children between 6 to 14 yrs of age is a fundamental right as it flows from Right to Life. After this decision, education was made a fundamental right explicitly through 86th amendment in 2002.

Art. 24: Children have a fundamental right against exploitation and it is prohibited to employ children below 14 yrs of age in factories and any hazardous processes. Recently the list of hazardous processes has been update to include domestic, hotel, and restaurant work.
Several PILs have been filed in the benefit of children. For example, MCMehta vs State of TN AIR 1991, SC has held that children cannot be employed in match factories or which are directly connected with the process as it is hazardous for the children.
In the case of Lakshmi Kant Pandey vs Union of India, AIR 1984, J Bhagvati has laid down guidelines for adoption of Indian children by foreigners.

Art. 45: Urges the state to provide early childhood care and education for children up to 6 yrs of age.

For older citizens
Art 41: Urges the state to give assistance in the matter of employment, education, and public assistance in cases of unemployment, old age, sickness.

Reservation as a constitutional right
Indian constitution envisages a state where everybody is treated equally. Even in the preamble, the constitution strives to provide equality in opportunity. Further, the constitution adopts the concept of "like should be treated alike" as the basis of equality. Thus, it is very clear that the constitution guarantees special provisions to be made for the betterment of special classes of citizens. In Part XVI, the constitution has laid down several articles that provide preferential treatment to backward classes.

There can be several ways through which the condition of backward classed can be improved and reservation is one such way. So it can be safely said that although reservation is not guaranteed by the constitution or it is not a constitutional right but it is certainly protected by the constitution as a mechanism to uplift the underprivileged classes.

Critical Analysis and personal view
In my view, reservation, in principle, is an effective means of improving the condition of socially and economically backward classes. Further, since wrongs were done against SC/STs in the name of caste system, I believe that they should be meaningfully compensated. However, it must be alienated from politics for truly benefiting these classes. It must be ensured that this benefit goes to the really deserving people and not to those who have already availed its benefit. The objective of reservation should be to bring an end to reservation itself by uplifting every one of the backward classes.

Therefore, I think that the judgement delivered in the case of Indra Sawhney vs Union of India by the SC in 1993 is a very fair one because it balances the amount of compensation with general efficiency of administration by capping reservation to 50%. It also ensures that the benefits are not hogged by the already empowered people (exclusion of creamy layer).