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AFFIRMATIVE ACTION AND DISCRIMINATIVE JUSTICE

Course Code: Credits: 03

Course Objective: For more than a decade, the relationship between affirmative action, justice
and equality has been examined extensively by both legal scholars and philosophers.' Elaborate
arguments have been mounted in support of, as well as in opposition to, affirmative action, but
no synthesis fully integrating the philosophical and constitutional dimensions of the issue
appears to have emerged. In ancient India, the people were divided into four classes namely;
Brahmins, Kshatriyas, Vaishyas and Shudras. The Shudras were considered as untouchables,
and were excluded all together from the society. After thousands of years, with the help of many
social movements, a revolution was brought up. Mahatma Gandhi, B.R Ambedkar, J.L Nehru,
and many other freedom fighters confronted the caste system and when our constitution was
being framed, a special provision was made under Article 46, Article 15(4), Article 16(4) and
few others for the uplifting of these backward classes. In the end, it was established that
affirmative action promotes equality in opportunity, but the implementation in India has failed to
show any desirable result, it has rather become a tool for political parties to fill their vote banks,
the backward class people still suffers, and untouchability still persists. The main objective of
this course is to discover if the present system of reservations in India is justified. Since, the
issue of affirmative action, is directly related to the question as to “What is Equality?” it was
considered necessary to answer that question first.  Through this module, there will be
suggestions about some political and social reforms to be implemented in future, so that
affirmative action can bring positive result, and helps in establishing an egalitarian society.

Module I: Equality and Social Justice: Is Affirmative Action in India Justified?


● The Concept of Justice: Need, Theories and Kinds (Legal, Distributive,
Corrective and Social)
● The Intersection of Equality, Rights and Justice
● Defining the Need for Affirmative Action
● Does ‘Affirmative Action’ Render ‘Discriminative Justice’?
● Understanding Discrimination Through the Lens of History: Caste and
Gender Inequality

Module II: Conventions and Laws Relating to Affirmative Action


● Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
● International Convention on the Elimination of All Forms of Racial
Discrimination, 1965
● Right of Children to Free and Compulsory Education Act, 2009
● Different Commissions for Ensuring Affirmative Action

Module III: Constitutional Apparatus for Affirmative Action


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● Constituent Assembly Debates: The Dialogue for Minority Protection
● Gandhi and Ambedkar: Dialogue on Caste Discrimination
● Constitutional Provisions ensuring Positive Discrimination
● Affirmative Action and Discriminative Justice under Personal Laws

Module IV: Gender, Caste and Intersectionality


● Women and Child Protection Laws
● Going Beyond the ‘two’ Genders: Inclusivity in Affirmative Action

Module V: Reservation Policy of the Government in General and Public Employment


● Reservation Policy: Theory and Practice
● Are Reservations a Measure of Justice?
● Reservations: A Path Towards Constitutional Secularism
● Existing Policies and Space for Structural Change in Implementation

Module VI: Economic Freedom, Social Justice and Markets


● Underlining and Understanding the Necessity of Economic Democracy in
India

Module VII: Comparing Policies


● In Comparison with South Africa
● Indigenous Groups v Urbanisation: In Comparison with New Zealand and
Australia

Books Recommended:

1. Why I Am Not A Hindu – Kancha Ilaiah Shepherd


2. M.P. Jain - Constitutional Law of India
3. Abolition of Bonded Labour - S.K. Singh
4. The Annihilation of Caste - B.R. Ambedkar
5. Justice, Gender, and Affirmative Action (Critical Perspectives on Women & Gender) -
Susan D. Clayton