What India Has Done Well for Disadvantaged Groups

In one line

India's record on disadvantaged groups includes six things few comparable systems have: constitutional entrenchment, reservation as a working system, group-specific commissions, the widest judicial access in the common law world, one treaty enacted almost provision for provision, and a recognised right recovered rather than conferred.

One: the protections are constitutional, not statutory

Article 15(4), article 16(4), article 17, article 46, articles 330 to 342, article 338, article 338A and article 338B are in the Constitution.

The consequence is structural. A statutory protection can be repealed by an ordinary majority. A constitutional one requires an amendment, and where it forms part of the basic structure of equality it may not be removable at all. Reservation for the Scheduled Castes and Scheduled Tribes, the abolition of untouchability and the two commissions do not depend on the politics of a single Parliament, and very few legal systems have placed group protection at that level.

Article 17 is worth naming on its own. It abolishes untouchability, forbids its practice in any form, and makes the enforcement of any disability arising out of it an offence punishable in accordance with law. It is one of the very few articles in Part III that binds private persons directly and creates an offence on the face of the Constitution.

Two: reservation is a working system, not a promise

Three features.

It operates at three levels: seats in the legislatures under articles 330 and 332, posts under article 16(4) and the disability legislation's section 34, and educational seats under article 15(5) and that legislation's section 32.

It has been extended by statute to new groups, most recently to persons with benchmark disabilities at four per cent of posts and five per cent of seats.

And it has developed internal refinements that show it is administered rather than merely declared: horizontal reservation for women within vertical categories, the four sub-quotas of one per cent each in section 34, and age relaxation under section 32(2).

The honest qualification. Reservation reaches the person who reaches the point of selection, and does nothing for the person who never reaches it. It is not a complete answer, and it is a real one.

Three: group-specific commissions

Nine bodies were studied in Module III, and the range is unusual: human rights generally, minorities, women, Scheduled Castes, Scheduled Tribes, backward classes, child rights, disability and transgender persons.

Their common power should be credited even while their common limit is criticised. Each may summon and enforce the attendance of witnesses, examine on oath, and compel the discovery and production of documents. A body that can require a Secretary to Government to appear and answer on oath establishes facts no individual litigant could establish, and many leading orders rest on their reports.