Journal of the Indian Law Institute, 3: 39-69 (1961)
Abstract
The Constitution of India is prefaced by a resolve" to secure to all of its citizens .. EQUALITY of status and opportunity .... " 1 Accordingly, it confers on all citizens a fundamental right to be free of discriIIliJ:J.ation by the State on grounds of race, religion and caste~2 In -speCific contexts goverrilli.ent is further forbidden to discriminate on grounds of place of birth,S residence,4 descent,5 class,s language 7 and sex.s Additional provisions outlaw untouchability 9 and protect the citizen from certain kinds of discrimination on the part of private persons and institutions. 10 It is envisaged that Government will not only refrain from discriminating but will actively undertake to remOVe existing discriminaTory~practices in 'the private sphereP But this attack' 'on discrimination is only one facet 'of the coi:llititutional scheme to secure equality. The Constitution also directs and empowers the Government to under- .take special measures for the advancement of backward groups. It is a " Directiye Principle of State Policy" 12 that: The State shall promote with special care the educational and economic interests of the weaker section's of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. 13 Consonant with this directive, the general provls10n forbidding discrimination by the State (Article 15) is qualified 14 by Art. 15(4), which provides that the State may make .. any special provision for the advancement of any and educationally backward classes of citizens or Scheduled Castes and the Scheduled Tribes. Similarly, Article 16, which forbids discrimination in regard to Government employment, is qualified in Article 16(4) to permit the State to make. " any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State". 5 In authorizing preferential treatment for the backward on the basis of membership in backward groups, India is experimenting with a method of ameliorating group differences that has been little used (and is very possibly constitutionally prohibited) in dealing with minority problems in the United States. 16 The American observer, though familiar with measures designed to outlaw discrimination, finds this principle of "protective discrimination" novel and strange. 17 But it is by no means a novelty in India.
