Is Women's Quota in Educational And Employment Sectors Permissible Under the Indian Constitution?A Critique


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Is Womens’ Quota in Educational and Employment Sectors Permissible Under The Indian Constitution? A Critique

Posted on February 3rd, 2014

Let us examine some most important Constitutional/Human rights guaranteed under the Indian Constitution equally applicable to both Indian men, women or others.(bisexual/homosexual etc)

The following human rights are constitutionally guaranteed in India as the most fundamental and enforceable in High Courts and Supreme Courts of India under Part-III through Writs such as Habeas Corpus, Mandamus, Quo-Warranto, Certiorari etc.

 

  1. .Right to Life
  2. Right To Liberty
  3. Right To Equality
  4. 4.Right To Dignity

I shall discuss each of the above constitutionally guaranteed Rights briefly here.

!) Right to Life: Article 21 of the Constitution of India declares: The State shall not deprive anyone of his right to life and personal liberty without any procedure established by law.

The Supreme Court of India in Franklin C.Mulin’s case(1981) 2 SCR 516: AIR 1981 SC 746, attempted to lay down the scope of right to  life and personal liberty thus:

“We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and co mingling with fellow human beings, of course the magnitudes and economic development of the country but it must be in any view o0fc the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities to constitute the bare minimum necessities of the human self”.

Sabyasachi Mukharji J. has observed in Ram Saran’s case that: “It is true that life in its expanded horizons today includes all that which gives meaning to man’s life   including his tradition, culture and heritage, and protection of that heritage in its full measure would certainly come within the compass of an expanded concept of Article 21 of the Constitution”.

The judicial activism of the Supreme Court has given an expansive and wide interpretation to right to life and personal liberty in Art. 21. E.g., Right of speedy trial, right to legal aid, right to livelihood, right to work, right to shelter, right to education, right to health etc have been read in to the right to life and liberty in Article 21. In a nut shell now this right to life and personal; liberty contains all those aspects of life, which make the life meaningful, complete and worth living.

But it may be noticed here that, the expression used in Protection of Human Rights Act is liberty and not personal liberty. Hence it is submitted that the legislature intended the term to cover All aspects of liberty including tho0se which have been expressly enumerated in Art 19(1) Clauses (a) to (g) of our Constitution. Supreme Courts both of India and the USA have held that the fact that some of the aspects of liberty even if recognized specifically will not preclude liberty being given wide interpretation (Maneka Gandhi’s case). In the opinion of DD Basu, Art. 21 does not exclude Art 19 and even if there is a law prescribing procedure for depriving liberty and there is consequently no infringement, of the fundamental right conferred by ART. 21, such law in so far as it abridges or takes away any fundamental right under Art. 19 would have to meet this challenge.”

In Unni Krishnan’s case(1993 (1) SCC, The Supreme Court held that  Righjt life and personal liberty includes

(1)  The right to go abroad

(2 )The right to privacy

(3)The right against solitary confinement

(4) The right against bar fetters

(5)_The right to legal Aid

(6)The right to speedy trial

(7)The right against handcuffing

(8)The right against delayed execution

(9)The right against Custodial Violence.

(10) The right against Public hanging.

11) The right to doctor’s assistance

(12) The right to shelter.

In Consumer Education and Research Centre vs. Union of India(1995 (3) SCC 520 and Ashok Kumar Gupta vs. State of U.P 19907 (5) SCC 201.The Supreme Court of India added the following additional Constitutional/human rights to Art 21 respectively.

  1. Right to medical Aid of workers.
  2. Social justice and economic empowerment.

Right to Liberty and Freedom: I’ve already discussed this right in the above discussion of Right to life and personal liberty.

Right to Equality:    Articles 14 to 18 of the Indian Constitution deal with the right to equality. Art. 14 is the main article guaranteeing equality in a general manner and Articles 15t and 16 deal with specific aspects there off. Articles 177 and 18 abolish respectively untouchability and titles except military and academic distinction.

B.P.Jeevan Reddy J. in Indira Sawhney’s case (AIR 1993 SC 447 (Para 4) has observed that

“The doctrine of equality has many facets. It is a dynamic and evolving concept. Its main facets, relevant to Indian Society, have been referred to in the Preamble and the Articles under the subheading “Right to Equality (Articles 14 to 18). In short, the4 goal as “equality of status and opportunity”.  Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several Articles in Part IV (Directive Principles of State Policy). Justice, Social, Economic and Political “is the sum total of the aspirations incorporated in Part IV”.

Article 14: Equality before law The State shall not deny to any person equality before the law or the equal protection protection of the laws within territory of India.

Indian Supreme court from the very beginning has followed the line of the US Supreme Court in interpreting the equality provisions contained under the above Articles.

The US Supreme Court has declared that” The guaranty of equal protection of the laws means the protection of equal; laws. It forbids class legislation but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects in which it is directed or by the territory within which it is to operate. It merely required that all persons subject to such equalization shall be treated alike under circumstances and conditions alike both in the privileges conferred and in the liabilities imposed.. The inhibition of the amendment was designed to prevent any person or class from being singled out as a special subject for hostile legislation.

The Indian Supreme Court has also held that Article does not forbid classes or reasonable classification for the purposes of legislation. It has laid down two tests (known as Nexus Tests) which must be satisfied by any legislation providing for classification of persons or things for a given object (Chiranjit Lal Chowdri vs. Union of India 1950 SCR 869). These tests are:

  1. The classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group.
  2. The differentia must have rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis namely geographical, according to the object, occupation or the like.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of b birth:-

  1. The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
  2. No citizen shall, on grounds only of religion, race, caste, sax, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard there to:
    1. Access to shops, Public Restaurants, Hotels and Places of Public Entertainment; Or
    2. The use of wells, tanks and Bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

3. Nothing in this Article shall prevent the State from making any special provision for women and children.

Nothing in this Article or in clause 2 of Art. 29 shall prevent State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes, Scheduled Tribes.

Article 16 : Equality of opportunity in matters of public employment:- 1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

2. No citizen shall on grounds only of religion, caste, sex, place of birth, residence or any of them be ineligible for or discriminated against in respect of, any employment or office under the State in respect of any employment or office under the State.

 

  1. Nothing in this Article shall be prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to any office under the Government of, or any local or other authority within a state or Union Territory, any requirement as to residence within the State or Union Territory prio3 to such employment or appointment.

4. 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 citizens which in the opinion of the

State, is not adequately represented in Services under the State.

4 A. Nothing in this Article shall prevent the State from making provisions for reservation, in matters of promotion, with consequential seniority to any class or classes of posts in the services under the State in favor of Scheduled Castes AND THE Scheduled Tribes which, in the opinion of the State are not adequately represented in the services under the State.

4. B. Nothing in this Article shall prevent the State from considering unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause 4 or  clause 4 A As a separate class of vacancies to be filled up in any succeeding year or years and such separate class of vacancies shall not be considered together with the Vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of the year.

  1. Nothing in this Article shall affect the operation of any law which provides that the incumbent of any office in connection with the affairs of a religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Initially articles 16 (1) and 15(1) were construed as laying down general principle of equality which could be curtailed under Articles 16 (4) and 15 (4) respectively which were regarded as proviso or exceptions to clause (1) of Articles 16 and 15 respectively. Article 15 is wider than Article 16, the latter being confined to only all matters of employment under the State. This interpretation that clause (4) is an exception to clause (1) OF Article 16 (or) for that matter Article 15 (4) is to 15 (1) continued to be valid till 1976 when in the decision of Thomas the apex court by a majority held that Article 16 (4) was not an exception to Article 16 (1) but was an aspect thereof. This gave a positive thrust to right to equality permitting Affirmative action in favor of socially and educationally Backward Classes including women, who are the most discriminated lot and oppressed classes in India for centuries and even in this modern technologically advanced era , for achieving equality in education and employment or office under the State.

Affirmative Action/Positive discrimination in favor of socially and Educationally Backward Classes or women: There is a difference between formal equality and actual equality. In order to bring about actual equality affirmative action fits the bill and allows to give preference to the socially And economically disadvantaged persons, which majority of Indian
Women are -by inflicting g handicaps on those more advantageously placed. Thus protective discrimination is a facet of equality. Legal equality UNDER Article 14 has no role to play when real equality is intended to be brought about by resorting to protective discrimination (Jadish VS. State of Haryana (1997 6 SCC 538 AIR 1097 SC 2366). The Apex Court has further observed that “Affirmative Action though apparently discriminatory is intended to produce equality on broader basis, by eliminating de facto inequalities and placing weaker sections of the community (This in my view should include majority of Indian women) on a footing of equality with the stringer and more powerful, so that each member of the community may enjoy equal opportunity of using to the full, his natural endowments of physique, character, and intelligence.”

The Directive principles of State Policy under Part 4 of the Constitution empower the State to make positive discrimination (State of U.P vs. Dina Nath Shukla (1997) 9 SCC 662) AIR 1997 SC 1095.

Article 16 (4) and Article 335: The Apex court has laid down that Article 16 (4) is an enabling provision and confers a discretionary power on the State to make4 a reservation of appointments in favor of backward classes of citizens (which certainly majority of Indian Women are), which in its opinion is not adequately represented either numerically or qualitatively in services of the State.

De jure equality Versus De facto equality: Those who are unequals cannot be treated b y identical standards. Equality in law certainly would not be real equality. In the circumstances, equality of opportunity depends not merely on absence of disparities but on the presence of abilities and opportunities. De jure equality must ultimately find its raison de etre in de facto equality. The State must therefore, resort to protective discrimination for the purpose of making people/women in India, who are factually unequal, equal In all areas or all walks of life.

Right to  human dignity” Education and Economic  and Physical empowerment of all Indian Women alone would guarantee  dignity of Indian women, which is an inviolable human and Constitutional right  so as to put an end to dowry related, domestic and all kinds of sexual violence along with physical empowerment by providing for free Martial Arts Training Schools for all able bodied Indian girls right from age 3 including reservations in all educational institutions  professional or otherwise and jobs in Public/Government undertakings  (1/3 rd of seats and vacancies in all higher educational institutions including professional, and Jobs in all Government /Public Sector respectively) should be reserved for women so as to safeguard their  Right to Life, Liberty Equality, and dignity guaranteed under the Indian Constitution as discussed above in this blog post.

Let us collectively fight for passage of such a legislation including reservations of 1/3 rd seats in our Parliament for women candidates forthwith. We, women should set aside our petty differences and unitedly fight for womens’ quotas in education and employment services. For at least for a period of 20 years to remove the gross under representation and gender disparities currently prevalent in our Indian Society , Andhra Pradesh and some other State Governments have provided for quotas for women in education and employment especially as Government Pleaders in Courts., This should be extended to all sectors- be they are – higher educational institutions or Public employment services. We should also push for free high quality professional entry coaching centers exclusively for women (such as IITs, IIMs, Medical entrance Tests etc) along with 33% womens’ quota in Public Services.

In the light of the above, I’d appeal to the Central and all State Governments to show positive discrimination in the form of Affirmative action by providing reservations/quotas for women in all educational and employment sectors including seats in legislatures to the extent of 33% by passing suitable legislations. Legislators of all parties should unanimously pass such legislation/s in legislatures including our Parliament and provide for quotas for women.

 

 

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