Compensatory Discrimination Hons. Prof.anirudh Prasad

8/10/2019 Compensatory Discrimination Hons. Prof.anirudh Prasad

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Course Module of Compensatory Discrimination

Honours Paper

Since all homo shampien are creation of the same God, equality among them is not only

an ideal but also the natural fate of the human race. But, the malady is that the creation of Godforgot the real message of the Supreme Being God created man in his own image and created

woman out of him as his good companion and best partner. But the human race forgot the

message of god to live with love, affection and virtues with a sense of brotherhood and

sisterhood with the sensibility of otherness. It created its own image of superiority and inferiority

which gave birth to acute discrimination. In this background non discriminatory measures to curb

the direct or indirect discrimination become meaningless, as they act as pertuatir of the existing

discrimination. And, therefore, compensatory discrimination is preferred as a tool of ensuring

the equalization justice.

The history of discrimination has more or less similar trends of psychological domination

by some group of persons over the other constructing racial images encouraging hierarchical

social order. The outcome being that some become privileged on the basis the accident of birth

and relegated others to disadvantaged position. The disadvantaged position of such unfortunate

people causes perpetuation of formal as well as material subordination. They are deprived of

social and political equality with the fortunate privileged people on the one hand and economic

subordination on the other. In some countries victim of societal hierarchical structure may be few

(minority) like USA but in other they may be many (majority). It is thought that racism in U.S.A.

and casteism in India are not aberrant but rather natural to the socio economic life and they have

become ingrained feature of the life. It is also viewed that how white elites in America or caste

superiority eoaded elites in India tolerate and encourage advancement of disadvantaged people in

their respective country is not above board, they do so when they also promote their self interest.

Compensatory discrimination is no more a mere measure of benign treatment of

unfortunate people relegated to subordination. It has social as well a national purpose as the

interests of the society at large would be better to served by promoting the advancement of the

weaker elements in the society or as helping them is now an effective way of attacking a national

problem and therefore, in elevating the depressed classes we are but elevating ourselves.

Justification for the course of study on Compensatory Discrimination.

In view of the worldwide awakening towards the problem of undeserved persecution of

illfated have nots in twentieth century and more particularly after the bad experience of the two


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World Wars every society has to evolve, adopt and encourage some positive steps to ameliorate

the condition of the condemned lot. The problem of discrimination in India has been and still

persisting is sui-generis having no parallel in the world history. And therefore, it provides

special justification for compensatory discriminationallowing discrimination on exactly on the

same grounds on which discrimination are prohibited by the Constitution. As AmericanConstitution has been said to be both colour blind and colour conscious, our Constitution too is

both caste blind and caste conscious. The Constitution itself permits discrimination on prohibited

ground of caste and sex with a view to prevent the discrimination being perpetuated, to undo the

effects of past discrimination and to secure against the future unequal treatment in any walk of

life. And , this is the Justification for study course on compensatory discrimination. Human

experience, scientific temper, and rational results have disapproved earlier nations of inequality

that women are not the intellectual peers of men or black or dalits are inherently lazy,

unintelligent, lascivious and so on. Since they have been discriminated and persecuted on wrong

and ill founded notions, they have to be compensated for past wrong done to them and ensured of

no further discrimination Bodenheimer rightly views the issue of unwanted degradation. The

victim of such degradation also have desire to be free from domination by others. He observes,

the struggle for emancipation of classes, races and the female sex, which occupies a prominent

place in legal history, is evidence of this psychological fact Compensatory Discrimination not

only compensates the degraded classes by creating an atmosphere to assert their status,

personality and independence on equal footing with others, it also widens the freedom of such

classes to have their own choices like others.

Paul W. Taylor very succinctly and forcefully Justifies compensatory discrimination

measures.

When an injustice has been committed to a group compensation or reparation must be

made to that group. Group rights to compensation are not rights against wrong doers but against

society as a whole. The obligation to offer such benefits to the group as a whole is an obligation

that falls on society in general, not on any particular person. For it is society that through its

established social practice brought upon itself the obligation

Objectives

1.

To develop a positive and critical attitude of students towards the policy and advance of

compensatory discrimination.

2. To sensitize students towards the problem of the disadvantaged sections of the society by

appreciation of reason based sensitivity having enduring effect in preference to emotion

which is not rational and is flitting.


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3. To sensitize students about the element of impathy owning the position of disadvantaged

groups looking into the whole matter for improvement and distinguishing it from

sympathy involving a sense of charity.

4. To acquaint students with the different like measures intending to help the disadvantaged

sections of the people, that is to say, benign discrimination, positive discrimination,protective discrimination, affirmative action, reverse discrimination and provide

awareness as to the compensatory discrimination as means of ensuring equalizational

justice.

5. To apprise the students of the compensatory discrimination measure including reservation

in U.S.A. U.K. Australia and Newzealand with a view to provide comparative trend

regarding the issue ending discrimination.

6. To enable the students to view the rationality, desirability and efficacy of measures

intending to help disadvantaged people and also think over the measures of helping them

should we give them fish to eat or fisher rod them- should we give them fish to eat or

fisher rod, the former will help them only for a day and latter will help them feeding for

the whole life.

7. To apprise the students of the visionary mission of the framers of the Constitution and

their success or failure in implementation of compensatory discrimination policy along

with evaluating its impact on the lives of disadvantaged people - has policy made them

independent and selfreliant or has it developed more dependency?

8.

To apprise the students of different measures meant for betterment, upliftment and

ensuring good social life to the disadvantaged people especially, SCs, STs, OBCs and

Women.

ModuleI

Historical Background And Perspective of Discrimination

1.

Psycho-Religious Bases of discrimination in Different parts of the World.

2. History of Race discrimination, and Deep- rooted Prejudices

3. Attempts to end the impact of discrimination in U.S.A., U.K. Australia and

Newzealand

4.

Sui- Generis status of compartmentalized, caste riden hierarchical Indian society.

a) Historical origin of a caste society and its position upto seventeenth century.

b)

Position of caste- riden society Between 1700 and 1830,

c) Western orientalists And the colonial perception of caste


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d) Caste modernity and caste debate and Gandhian Nationalism

e) Caste consciousness in Independent India

References

1.

Edgar, Boden heimer, Jurisprudence- The Philosophy And Method of the Law 20092. Susan Bayly, Caste, Society And Politics in India, Cambridge University Press, 1999

(india reprint, 2002)

3.

Shanti Swanp Gupta, Varna, Castes and Scheduled Castes- A Documentation in

Historical Perspective Concept Publishing Co., NewDelhi, 1991.

4. (Dr.) Ram Samujh, Reservation Policy- Its Relevance in Modern India, Samrudh Bharat

Publication, 2005.

5. Anirudh Prasad, Reservation Policy and Practice in India A Means to And End, Deep

and Deep Publications, New Delhi, 1991.

6. Anuradha Sharma, Castes and Tribes in India, Commonwealth Publishers, New Delhi,

1999.

7. Justice V.R. Krishna Iyer, Dr. Ambedkar and Dalit Future, B.R. Publication Corporation,

Delhi, 1990.

8. Marc, Galanter, Competing Equalities Law And Backward Classed in India, Oxford

University Press, New York, 1987.

9. Alpheus Thomas Mason, Donald Grier Stephenson, Jr, American Constitutional Law,

Prentice Hall, 1999 pp 598-603 and 613-61

10.Dennis Lloyd, Introduction Jurisprudence, 2008 pp. 1491 -1526.

11.N. Bamford, M. Malik and C. Ocinneide (ed.) discfrimination Law Theory and Context,

London, Sweet and Maxwll, 2008 pp. 345-426

12.

Plessy V. Ferguson 163 U.S. 537. (1896)

13.Brown V Board of Education 347 U.S. 483 (1954) and 349 U.S. 294 (1955)

14.

Regents of the University of California V Bakke 438 U.S. 265 (1978)

15.ANARAND Constructors Inc. V. Pena 63 USL. W4523.

16.SHEELA Rai, Reservation/ Set Asides in Services in India and U.S.A. (2004) P.L. WEB

Jour 19

17.

Taylor, Reverse Discrimination And Compensatory justice, 33 Analysis 177 (1973)

18.Goldman Justice And Reverse Discrimination (Princeton uniV 1979.

19.R. Dworkin, Reverse Discrimination (in) Taking Rights Seriously, 2008 pp 223-240

20.

Surya Narain Chaudhary v. State of Rajasthan AIR 1989 Raj. 99


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ModuleII

Identification of the Recipicient of the Benefits of Compensatory Discrimination

1) Scheduled Castes (Article 341)

2) Scheduled Tribes (Article 341)

3)

Socially And Educationally Backward Classesa) Judicial Attempt to identify Backward classes on rational and Scientific criterion

devoid of caste consciousness

b)

Caste as a class

c) Caste as a class but subject to creamy layerisation.

Reference

Anirudh Prasad, Reservation Policy and Practice in India, 1991.

Reservational Justice to other Backward classes, Deep and Deep Publications, New Delhi, 1997

C.L. Anand, Equality Justice and Reverse Discrimination, Mittal Publications, New Delhi, 1987.

V.N. Shukla (M.P. Singh ed.) Constitution of India, 2008

M.P. Jain, Indian Constitutional Law., 2008

Bhaiya Ram Munda V. Anirudh Patar (1970) 2S.C.C.825

Bhaiyalal V. jharikishan Singh V. A.I.R. 1965 S.C. 1557, C.M. Arunamuagam V.S. Rajagopal

(1976) I.S.C.R., 863,

S. Swvigaradoss V. zonal Mgr. F.C.I. (1996) 3SSC 100.

Sobha Hemavati Devi V. Setti Gangdhar Swami (2005) 2 S.C.C. 224

State of Maharastra V. Milind (2000) ISCC4

E.V. Chinnaiah V. State of A.P. (2005) ISCC394

Marri Chandra V. Dean, Seth G.S. Medical College (1990) 3SCC130Action committee for issue of caste certificate to SC & STs v. Union of India (1994) 5S.C.C.244.

Report of the First Backward Classes Commission (Kaka Kalelkar Commission), 1955

Report of the Second Back Ward Classes Commission (Mandal Commission), 1980

Marc, Galanter, Competing Equalities, 1984

M.R. Balaji V. State of Mysore A.I.R. 1963 S.C. 649

R. Chitralekha V. State of Mysore A.I.R. 1964 S.C. 1623

Km. K.S. Jayshree V. State of Kerala A.I.R.1968 S.C. 2381

P. Rajendran V. State of Tamil Nadu A.I.R. 1971 S.C. 2303

State of A.P.V. Balaram A.I.R. 1972 S.C. 1375

K.C. Vasanth Kumar V. State of Karnataka A.I.R.1972 S.c.C 1495

Indra Sawhney V. Union of India (1992) 3S.C.C. 217.Nani A. Palkhivala, We, The National - The Lost Decades, UBSPD Publications, 1994

Ashok Kumar Thakur V. State of Bihar (1995) 5 S.C.C. 603

Module-III

Constitutional provisions securing compensatory Discrimination to the Scheduled Caste

and Schedule Tribes1. Constitutional Provisions.

2.

Relevant Provisions and their Interpretation in relation to Reservations in Admission

in Educational Institutions (Article 15 (4)

3.

Problem of Extension of Reservational Benefit to the Private Educational Institutional(Article 15(5))


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4. Provisions and their Interpretation in relation to reservation in services under the state

(Arts. 16(4) (4A) and (4B) 335)

5.

Reservation of seats in the legislative Bodies. Articles 330, 331, 332, 334 etc.

6. Legitimacy of extetion of the time limit

7.

Reservation of seats in panchats (Article 243-D)

8. Reservation of seats in Municipality (Article 243-T)

References

Marc Galanter, Competing Equalities, 1984

Dr. Ram Samujh, Reservation Policy 2005 Anirudh Prasad, Reservation Policy in India 1991

P & T schedule caste/Trible employees welfare Association V. Union of India (19884SCC

47.

T. Devadasan V. Union of India A.I.R. 1964 S.C. 179

State of Kerala V. N.M. Thomas A.I.R. 1976 S.C. 490

Akhil Bhartiya Soshit Karamchari Sangh V. Union of India (1981) ISCC 246

Dr. Preeti Srivastva V. State of M.P. (1999) 7SCC 120

Ashok Kumar Thakur V. Union of India (2008) 6SCC 1M. Nagraj V. Union of India (2006) 8SCC212

Akhil Bharatiya Soshit Karmachari Sangh (Rly) V. Union of India (1981) 1SCC 246

N.S. Chandra Shekharan, Dalit Juris prudence: Legal Basis, 28 J.I.L.I. 392 (1986)

Bandhua Mukti Morcha v. Union of India (1984)3 SCC161

Module IV

Constitutional Provisions Securing Compensatory Discrimination to the SEBCS.

1. Provision Relating Admissions in Educational Institutions (Article 15(4))

2.

Problem of Extension to Resevational Benefit to private and unaided educationalInstitution (Article 15(5))

3.

Provisions Relating to employment in government services Article (16(4) and 4-B)

References

Marc Galanter, Competing equalities, 1984

Anirudh Prasad, Reservational Justice to other Backward Classes, 1997

C.L. Anand Equality, justice and Reverse Discrimination, 1987

Parmanand Singh, Equality, Reservation and Discimination in India, 1982

M.R. Balaji V. State of Mysore A.I.R. 1963 SC 649

K.C. Vasasth Kumar V. State of Karnataka 1985 supp. SCC714

Ashok Kumar Thakur V. Union of India (1995) 5Sc(403) 1985 Supp SCC714.

Ashok Kumar Thakur V. union of India (2008) 6S.C.C.1.

Bimlesh Tanwar V. State of Haryana (2003) 5SCC 604

Indra Sawhney V. Union of India (1992)3S.C.C.217

Module-V

Issues Relating to compensatory Discrimination in Educational/Institution and

Employment through Reservation(1) Extent of Protective Discrimination through Reservation

(2) Reservation against a single post.(3) Reservation in super specialties.

(4) Reservation in promotion.


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(5) Creamy Layerisation Among SCs & STs.

(6) Carry forward Rule.

(7) Time limit for reservation.

(8) Impact of Migration from one state to another.

(9) Impact of marriage, adoption and conversion.

(10) Impact of false caste certificates.

References

Anirudh Prasad, Reservational Justice to Other Backward Classed, 1997.

Ram samujh, Reservation policy, 2005

M.R. Balaji is state of Mysore, A.I.R. 1963 S.C. 649.

A.B. S.K. Sangh (Rly) V Union of India (1992) 3 SCC 217

Chakradhar paswan V State of Bihar AIR 1988 S.C. 959

Medical Education and research, Chandigarh V. Faculty Association AIR 1998 S.C. 1767

G.M. Southern Rly V. Rangachari (1962) 2SCR 586.

State of Punjab /v Hiralal AIR 1971 S.C.1977.

Comptroller and auditor general v. K. S, Jaganathan AIR 1986 S.C. 536S.C./S.T. Employees welfare Association V. SBI AIR 1985 S.C. 1485

Ashok Kumar Thakur V. Union of India (2008) 6SCC1

Marry Chandra V. Dean SGS Medical College (1990) 3 SCG 130

Action committee on issue of caste certificate to S.C, ST V Union of India (1994) 5 SCC-244.

S. Puspa and others V. Siva chanamugavelu (2004) 5 SCC(Lads)449

Valsamma Paul V. Cochin University(1996) 3SCC, 645 = AIR 1996 S.C. 1011

State of Tripura V. Nomita Majumdar (Burman) (1998) 9 SCC 217

R. Vishwanath Pillai V. State of Kerala (2004) 4 SCC L.S, 350.

Module VI

Compensatory Discrimination to Ensure Gender Justice(i)

Unscientific and Irrational Bases of sex discrimination.

(ii) Constitutional Provisions enabling special Treatment and ending sex- discrimination

-

Articles 15(3)

- Articles 243-D(2) and (3)

- Articles 243T(2) and (3)

- Articles 23 (i)

- Articles 39 (a) and (b)

(iii)

Issue of women's Reservation in Parliament.

(iv) Women Empowerment Policy, 2001.

(v)

Domestic Violence Act, 2005

(vi) Indian Penal CodeSections 498A, 304-B and Evidence ActSection 113- B

References

Ram samujh, Reservation policy, 2005 pp124-133.

Anirudh Prasad, Reservation policy and Practice in India, 1991 pp ,222-238

S.L. Goel, Good Governance, 2007 pp 489-530

Muller V. Oregon 208, U.S. 412 (1908)

Visaka V. State of Rajasthan (1997) 6SCC 241

Yusuf Abdul Aziz V. State of Bombay AIR 1954 S.C.Somithri Vishnu V. Union of India (1995) 4 SCC 520

Gayatri Devi Pansari V. State of Orissa (2000) 4SCC 221


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Bai Tahira V. A.H.F. Ghothia (1979) 2SCC 316

Anuj Garg V. Hotel Assn. of India (2008) 3SCC 277.

Kasambhai F. Ghanchi V. Chandubhai D. Rajput A.I.R. 1998 S.C,. 815

Saraswati Devi V, Shanti Devi A.I.R. 1997 S.C. 145 overruled

Air India V Nargesh Meerza A.I.R. 1981 S.C.1829

Vijay Laxmi V Punjab university (2004) 1SCC (Lads.) 38

Rima Agrawal v. Anupam (2004) 3 SCC 199Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490

Rupa Ashok Hurra v. Ashok Hurra (2007) 4 SCC 388

Module VII

Special Provisions for the Administration of SCs and STs and Prevention of Atrocities

Against them.(1) National Commission for scheduled castes (Article 337)

(2) National Commission for Scheduled castes (Articles 338)

(3) Union Control over schedule of Areas and welfare of Sts (Articles 339)(4) Administration of scheduled Areas and Tribal Areas

(a) Article 244 (1) read with Fifth Schedule

(b) Article 244-A read with Sixth Schedule

(c) Article 244-A

(d) Grants in Aid for the welfare of STs Article 275(1)

(e) Administration of Tribal Development

(5) Abolition of Untouchability (Article 17)

(6) Protection of Civil Rights Act, 1955

(7) The SCs and STs (Prevention of Atrocities) Act, 1989

References

Devendra Thakur and D.N. Thakur, Trible Law and Administration, Deep and Deep

publications, New-Delhi/Second reprint, 2009)

Ram kivpal Bhagat V. State of Bihar (1969) 3S CC478

State of Meghalaya v. ka Brhyien kurkalang (1972) ISCC148

District Council, jawae Autonomous distt. V. Dwet Singh Rymbai (1986) 4SCC 38

State of Karnataka V. Appa Balu Ingale (1944) Supp (4) SCC & 69

Jai Singh V. union of India AIR 1993 Raj 177

State of M.P. V. Ram Krishna, Balothia (1995) 3 SCC 221.

Marc, Galanter, Caste Disabilities and Indian Federation, 3JILI205 (1961)

Module-VIII

Compensatory Discrimination by way of Alternative of Reservational measures

1. Age Reeaxation to different types of beneficiaries.

2.

Relaxation of Qualifications and /or Minimum number of marks/Grades

3. Fee concession for examinations/selections.

4.

Fare concessions for attending competitive examinations.5.

Pre-job and post job schemes of training


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6. Housing and Loan scheme for SCs, Sts and OBCs

References

1.

Anirudh Prasad, Reservation Policy and Practice in India, 1991 pp, 317-362

2. Dr. Ram Samujh, Reservation Policy, 2005 pp 162-173

3. Pavadai V. State of Madras AIR, 1973 mad 458

4. Bandhu Mukti Morcha v. Union of India (1984) 3 SCC 161

Module-IX

Local Government in scheduled area and rural employment guarantee schemes.

(a)

Panchayat Extension to scheduled area Act, 1996

(b)

Forest Act, 2006 (Relating to STs and other forest dwellers )

(c)Sampoorna Grarneena Rozgar yojana (SGRY).

(d)

National Food for work Programme (NFFWP)

(e)Pradhan Mantri Gramin Sadak Yojana (PMSY)

(f) Swarnajayanti Gram Swaarojgar Yojana (SGSY)

(g)

National Rural Employment Guarantee Act, 2005 (NRECA)

Reference

S.L. Goel, Good Governance: An Integral Approach, Deep and Deep publication, 2007 pp 386-

413

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Compensatory Discrimination Hons. Prof.anirudh Prasad

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