Affirmative Action Policies
This blog will teach the reader about Affirmative action theory The foundation for affirmative action policies is legal and normative discussions of affirmative action a few specific regulations and laws
Content
- Introduction
- Constitution, Equality Laws And International Norms
- Equality And Affirmative Action
- Scheduled Castes, Scheduled Tribes And Backward Castes
- Religious Minorities
- Gender Equality
- Transgender Rights
- Conclusion
Introduction
Race, ethnicity, and caste have historically influenced equality laws in various nations. After much organising and competition, other types of inequality—such as gender, disability, and sexual orientation—have been added. Affirmative action measures are historically based on equality legislation that have been incorporated into various nations' constitutions. For groups and individuals who have suffered historical injustice, affirmative action programmes are required by the Indian constitution. Affirmative action reserves a fraction of seats in government elected bodies, public employment, and higher education institutions for groups who are thought to have historically had social and economic disadvantages and are still subject to discrimination from the general public.
In independent India, quota-based access to elected entities, education, and employment has primarily been granted to members of the communities known as the Scheduled Castes, Scheduled Tribes, and Other Backward Castes under the Indian Constitution. Three-quarters of the seats in elected local government bodies are now reserved for women as of 1993. The identification and inclusion of emerging groups, such as Muslim religious minorities, the disabled, and transgender persons, who also experience a variety of disadvantages due to discrimination in Indian society, is a topic of continuous discussion.
Constitution, Equality Laws And International Norms
In India in the 1950s, general development initiatives were used to address other types of disparities while particular redistributive measures were sponsored to address caste-related inequities. The idea that no explicit redistributive measures needed to be done because the most obvious distinctions between groups were economic was adopted in the 1960s to replace this point of view. The broad level would be taken care of through overall development. Caste distinctions were viewed as a betrayal of egalitarian ideals. Some had cited the caste system as the greatest barrier to India's progressive aspiration to be an egalitarian society in the constitutional debates that took place in the 1950s India regarding the identification of groups to be deemed as "backward" and the "criterion" to be used for preferential treatment. Caste-based discrimination would continue if some castes were considered to be behind in this situation (Galanter 1978). The Indian Constitution, however, was among the first to include provisions for affirmative action or "reservations" of a certain number of university seats and public sector positions. The constitution's drafters were aware of the tremendous social, educational, and economic disadvantages that some communities in the nation were experiencing as a result of long-standing untouchability and caste prejudice. To hasten their socioeconomic development, such populations required particular care.
The Right to Equality is covered by a number of clauses in the Indian Constitution. Affirmative action is required by Articles 15, 16, and 14 of the Indian Constitution, which guarantee equality and prohibit discrimination. The 14th amendment to the US constitution serves as the original inspiration for Article 14. According to this, "the State shall not deny to any individual within the territory of India, equality before the law or the equal protection of the laws." According to Article 15, "the State shall not discriminate against any citizen and no citizen shall be subject to any disability, liability, restriction, or condition with respect to, a) access to shops, public restaurants, hotels, and places of public entertainment, and b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partially out of state funds or dedicated to the use of the general public. Article 16 states: "Equality of opportunity for all citizens in connection to work or appointment to a State office and bans discrimination in relation to State employment or office on the mentioned grounds." In accordance with the constitution, "special provisions" may also be made for women, children, and members of Scheduled Castes and Scheduled Tribes as well as for classes of citizens who are socially and educationally backward. The 74th Amendment Act of 1992, which amended the Constitution, included clauses requiring a one-third reserve for women in local governmental organisations.
The Civil Rights Act of 1964 forbids discrimination in the USA on specific grounds in the workplace and for access to public services. Discrimination in employment and the provision of goods and services is prohibited by the Canadian Human Rights Act. Affirmative action legislation has led to reservations in public employment and education in India. The reach of equality laws has been widened by new legislation on disability, transgender rights, and sexual harassment. Similar legislation can be found in South Africa, where the Employment Equity Act and the Promotion of Equality and Prevention of Discrimination Act are two examples. Various International Human Rights Conventions support the laws governing equality in different countries. These include the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of Persons with Disabilities, the International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
Who in various national contexts is governed by equality laws? While the State is the sole entity that is bound by human rights at the constitutional level, non-state organisations like the private sector may occasionally be more precisely or potentially obligated by equality laws. The Indian Constitution's Article 17, which forbids caste-based discrimination, applies to both the public and private sectors.
Equality And Affirmative Action
Treating "likes similar" is only one aspect of equality. It encompasses concepts like establishing real equality in communities where it was previously nonexistent. It can refer to actions taken to produce positive discrimination for individuals perceived to be disadvantaged, the prevention and prohibition of direct and indirect discrimination, as well as the idea of "reasonable accommodation." The word "equality" has been used in court decisions on certain discrimination instances. In 1997, the Indian Supreme Court found in the Vishaka case that workplace sexual harassment violated women's equality rights.
In the United States, the momentous decision in Brown v. Board of Education by the Supreme Court was founded on the importance of equality. The ruling deemed racial school segregation to be unconstitutional and fundamentally "unequal." 1 The ruling declared racial discrimination to be unconstitutional, igniting the civil rights movement and the fight for equal citizenship rights for all African Americans and other minority groups.
Affirmative action that explicitly favours a person or group over others on the basis of race, gender, or other status appears to go against the core tenets of anti-discrimination law. However, it has become obvious that these preferences, when used in favour of a disadvantaged group, could advance equality rather than harm it as equality is now understood to be more than "treating likes alike." Depending on how precisely it is framed and how beneficiary groups are identified, it may or may not accomplish this.
Affirmative action policies that support positive discrimination are justified by a variety of grounds. It is said that remediation is the moral reason for putting past wrongs right. The employment of remedial action to address unequal treatment based on race, caste, ethnicity, and sex is emphasised in this position. Reservations and quotas are used to make up for social disadvantage, economic inequality, and imbalances caused by prejudice in the past and today. A more practical rationale for the economic efficiency claim is that society needs more members of socially marginalised groups to enter the labour market and contribute to the economy. Integration: setting an example and preventing disillusionment. Another form of instrumental argument that links affirmative action to the flow of educational benefits from a highly varied student body and richer learning environment is the promotion of diversity. Arguments for social justice place a strong emphasis on the inherent worth of racial harmony, the abolition of institutionalised injustices, and parity in democratic participation. The constitutionally required reservation rules in India are based on social justice considerations and aim to provide people more "context of choice." According to the Capability Theory, in order to achieve equality for everyone, people must grow in important human abilities. Affirmative action lowers distributive inequities, empowers the underprivileged, fosters the growth of essential human abilities, and lays the groundwork for the establishment of a just society (Moses 2014: 29-30)
Affirmative action measures in India focused on social status rather than economic inequality in order to achieve social fairness. Status disparities were thought to result from caste systems that systematically barred certain groups from political influence and education, rather than from economic deprivation. Social justice arguments stressed group membership as the root of personal disadvantage, particularly in the case of other backward castes (OBC). Therefore, reservation regulations should apply to socially disadvantaged groups rather than to those who are financially struggling (Bajpai 2010). For an equality or anti-discrimination objective, the rights approach is more effective than the welfare approach. According to the Rights approach, each member of the group has an equal right to special protection as long as the group as a whole does. By limiting entitlement to the most vulnerable, the programme is transformed into a welfare programme, which makes it easier to impose more restrictions. 661) Blumrosen, 1985
Scheduled Castes, Scheduled Tribes And Backward Castes
The Scheduled Castes and Scheduled Tribes, two categories of disadvantaged communities as determined by the president, are given special provisions in the Indian Constitution. Up to 2008, 1208 communities were designated as Scheduled Castes. 2 The states having the most SC communities are Karnataka (101), Odisha (93), Tamil Nadu (76), Uttar Pradesh (66), Uttarakhand (65), AP (60), and Maharashtra (59). (ibid). 1963 people who have been designated as Other Backward Castes (OBC). Organizations listed as Scheduled Tribes with the number 705.3 Additionally, 75 villages are categorised as Particularly Vulnerable Tribal Groups (PVTG) within this (ibid). According to Article 340 (1), the National Commission for Backward Classes shall establish a list of socially and educationally backward classes of people called Other Backward Classes.
Scheduled Castes (SC) are communities (castes, races, tribes, or other groups) that are categorised under Article 341 of the Indian Constitution and are mentioned in Article 366. (24). Article 366 (25) of the Indian Constitution designates communities listed under Article 342 as Scheduled Tribes (ST) and refers to them as such. The Early Government Committee highlighted several features of the ST, including a distinctive culture, remoteness from other areas, and backwardness (GoI 2013). The ST, who make up 8.6% of the country's population and number 104.3 million, primarily reside in rural areas in the Central and Northeastern regions of the country (ibid). Seats in the House of Parliament are set aside for SC and ST under Article 330 of the Constitution. According to Article 332, these groupings are given seats in the state legislative assemblies. Articles 243D and 243T, respectively, provide for reservations in local governments that are rural and urban, respectively (GoI 2017).
The Mandal Commission was established in 1978 by the Janata Party government. In spite of making up just 20% of the population, the Commission concluded in 1980 that Upper and Middle Castes held 90% of Class I positions (Mandal Commission Report 1980). Lower caste groups primarily worked in the unorganised sector at low-paying, unskilled or semi-skilled jobs. Caste resources offer crucial connections for getting job in this precarious industry. It subsequently suggested a 27% OBC quota for positions in higher education and the central government. The Janata Dal government sought OBC quotas, which were implemented in 1993 after receiving broad support from the Supreme Court. The Congress-led government advocated OBC quotas in higher education institutions in 2006. A Supreme Court ruling established the 2005OBC quotas as being limited to 27% and may not exceed 50%. This was done after the Supreme Court authorised the Constitution's 93rd Amendment Act.
Religious Minorities
14% of all people in India are Muslims. Recent government studies underscore the area's dire social and economic circumstances (GoI 2006, 2008). The community had limited access to credit and housing, suffered from high levels of poverty, a low literacy rate, had a very small percentage of secure government jobs. One of the primary causes of the socioeconomic challenges the group faces has been recognised as the racial prejudice suffered by Muslims. Following the Sachar report's revelation of Muslims' appalling conditions and the creation of the Ministry of Minority Affairs to address them, the Kundu Committee was established in 2013 to examine the socioeconomic and educational state of Muslims. Apart from education and health, the report assesses the situation of Muslims based on characteristics like demography, employment, livelihood, consumption, living standards, poverty, and administration of Wakf property. According to the committee's assessment, Muslims are still not given access to government employment, the school dropout rate is still high, and there are no health services in Muslim-dominated communities. Between 2004-05 and 2011-12, Muslims' poverty levels were greater than the national average, and they ranked third-to-last in terms of consumption expenditures, after Scheduled Tribes and Scheduled Castes (ibid).
Gender Equality
India's low ranking in the gender development index is a result of the country's pervasive gender inequality. The average GDI is 0.924, while India's is 0.795. Out of 155 nations, India comes up at position 130 in terms of gender inequality. India has one of the lowest rates of female labour force participation worldwide. It also performs poorly in a number of other areas related to gender equality. Women are typically underrepresented in the workforce, including in positions of authority and political office. Recent governmental initiatives have made an effort to improve this situation by taking proactive measures to combat discrimination and advance equal opportunity. All offices with 10 or more employees are required under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 to have an internal complaints committee to handle complaints in a timely manner or risk fines. Workplace sexual harassment may result in dismissal, withholding of promotions and salary raises, and payment of fair compensation to the claimant. The Ministry of Women and Child Development argued that sexual harassment at work violated women's rights to equality, life, and liberty in order to define the law in terms of equality. Additionally, it was suggested that sexual harassment reduced women's employment opportunities, which had a negative impact on their ability to advance economically.
In comparison to international norms, female political participation has likewise been low. In 2014, there were 12.2% women MPs in the House of Commons and 9% women in state legislatures. There were just 12.8% women in the Rajya Sabha. In both rural and urban municipal authorities, constitutional modifications have attempted to increase the representation of women. 33 percent of the jobs in the panchayati raj institutions and certain urban local councils are reserved for women under the 1993 73rd and 74th constitutional amendments. These changes are regarded as historic laws that have given India the most elected female lawmakers in the entire globe. In the country's three-tiered rural panchayats, the 73rd Amendment guaranteed the election of over 10,48,148 elected women representatives out of a total of 28,51,739 representatives. Similar to this, the 74th amendment to the constitution ensured that 22,665 women out of a total of 67,990 representatives were elected to urban local authorities as of 2002.
Transgender Rights
In India, 600,000 persons identify as transgender, according to the 2011 census. In accordance with the 2016 Transgender Persons (Protection of Rights) Bill, transgender offences are subject to harsh penalties, including up to two years in prison. Transgender people who are not members of a Scheduled Caste or Scheduled Tribe may be classified as members of the Backward Classes and be eligible for OBC category reservations. The bill also requests that the Indian Penal Code be amended as needed to include incidents of sexual assault against transgender people.
In the NALSA Case, the Supreme Court of India affirmed in April 2014 that transgender people's constitutional right to formal gender recognition. The ruling further demanded that transgender people be treated as socially and economically inferior, and it established the third gender category as the prerequisite for employment and entrance to educational institutions. Activists contend that the bill's elaborate identification procedure violates a significant Supreme Court decision known as the NALSA case. In this case, the Court had cited international human rights law, which mandates that states use all practical means to respect and formally acknowledge an individual's self-identified gender.
Conclusion
In independent India, quota-based access to elected entities, education, and employment has primarily been granted to members of the communities known as the Scheduled Castes, Scheduled Tribes, and Other Backward Castes under the Indian Constitution. In recent years, women now have a reservation for one-third of all seats in locally elected assemblies. The identification and inclusion of emerging groups, such as Muslim religious minorities, the disabled, and transgender persons, who also experience a variety of disadvantages due to discrimination in Indian society, is a topic of continuous discussion.
Comments