High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
D. Pothumallee & Others
Versus
The District Collector, Thiruvarur District & Others
W.P.NOs. 10748 of 2009, 3840 to 3842, 3950, 5116, 5117 & 6645 of 2010 & M.P.NOS.1 & 2 OF 2009, 1,1,1,1,1,1 & 1 of 2010
Decided on : 9-04-2010
Discrimination - Health Care Access - [Section 5 of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (Act 45 of 1994)] - The court discussed the discrimination experienced by Dalit children in health care access and the reservation need for Anganwadi workers and noon meal organizers under the ICDS Scheme and Nutritious Meal Scheme. The judgment highlighted the importance of reservation for the underprivileged sections of society and emphasized the need for social integration and removal of disparities and untouchability.
Fact of the Case:
The case involved discrimination experienced by Dalit children in health care access and the challenge to the appointment of an Anganwadi Assistant in the Anganwadi Centre at Kattakudi, Bharathidasan Street, Needamangalam. The petitioner claimed that the appointment was made without following norms and without reservation for scheduled caste candidates.
Finding of the Court:
The court found that discrimination was prevalent in health care access and that the appointment of the Anganwadi Assistant was made without following reservation norms. It rejected the state's stand and directed the provision of reservation for SC/STs in the appointments, forbidding the filling of posts without due representation to SC/ST communities.
Issues: The issues included discrimination in health care access, challenge to the appointment of an Anganwadi Assistant, and the need for reservation for SC/STs in the appointments of Anganwadi workers and noon meal organizers.
Ratio Decidendi: The court's decision was based on the prevalence of discrimination, the importance of reservation for underprivileged sections of society, and the constitutional mandate for providing reservation for SC/STs in public employment.
Final Decision: The court directed the provision of reservation for SC/STs in the appointments of Anganwadi workers and noon meal organizers, forbidding the filling of posts without due representation to SC/ST communities.
1. Wedeal here with the right of all our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future . . .[U]nless our children begin to learn together, there is little hope that our people will ever learn to live together.
(Milliken v.Bradley, 418 U.S. 717, 783 (1974) (Marshall, J., dissenting))
II. The Fact file:
1. As regards discrimination by providers, grassroots-level workers like Auxiliary Nurse Midwives (ANMs) and Anganwadi Workers (AWWs) were more discriminating than the higher-order providers such as doctors and lab technicians. Of the total number of times that Dalit children accessed health care services, more than 93 per cent times they experienced discrimination by ANMs and AWWs.
Almost always (98 per cent times), the AWWs served the food last to the Dalit children. (See: Tables below)
2. TABLE 7.3: Nature of Discrimination Experience by Dalit Children in Health Care Access-by Sphere, Form, and Provider
Nature of discrimination Total Positive Children response response experiencing discrimination (in percentage)
AWWs do not touch them 1931 1680 87 AWWs make them sit separately 1703 1465 86 AWWs do not speak gently 839 604 72 AWWs serve them food last 1902 1864 98
3. Discrimination through touch was more vigorously practised by pharmacists, ANMs and AWWs. They did not touch the Dalit children in almost all the times they interacted with the children. (See Table 7.4)
4. TABLE 7.4: Caste-based Discrimination Experienced by Dalit Children while Accessing Health Care by Degree of Prevalence 80-90% 90%+ AWWs do not touch them AWWs make them sit separately AWWs serve them food last See: Sanghamitra S.Acharya in "Blocked by Caste ECONOMIC DISCRIMINATION in MODERN
INDIA" , Edited by Sukhadeo Thorat & Katherine S.Newman, Oxford University Press, New Delhi, 2010) pp.216-220
III. Debates on interdining among various Castes:
1. Inter drinking, inter dining, intermarrying, I hold, are not essential for the promotion of the spirit of democracy. I do not contemplate under a most democratic constitution a universality of manners and customs about eating, drinking and marrying. We shall ever have to seek unity in diversity, and I decline to consider it a sin for a man not to drink or eat with anybody and everybody.
(The caste system, Young India, 8 Dec. 1920, The Collected Works of Mahatma Gandhi, vol. XIX, Ahmedabad: Navjivan Trust, 1966, pp.83-5.)
3. 2. Responding to the controversy around separate dining practised in the gurukulam (at Tirunelveli, Tamil Nadu), M.K.Gandhi argued "I do not regard it as a sin for a person not to dine with another nor do I regard it as sinful if one advocates and practices inter-dining. I should, however, resist the attempt to break down the restriction in regard to the feelings of others. On the contrary, I would respect their scruples. See: Padmanabhan, V.V.S. Aiyer, p.196.
3. 3. E.V.Ramasamy (known as Periyar) opposed the practice of separate dining arrangements for Brahmin and the non-Brahmin students in Cheranmadevi Gurukulam.
(M.S.S. Pandian, Brahmin & Non Brahmin, Permanent Black,Delhi, (2007) p.190.
4. "E.V.R. quarrelled with Congress and Gandhi very soon after the Vaikkam affair over the question of separate dining for Brahman and non-Brahman students in a Congress-sponsored school (Gurukkulam) near Madras. The school was set up by the nationalist leader V.V.S. Iyer with the aim of imparting traditional religious education in the larger context of a commitment to patriotism and social service. After several complaints, it became clear that Iyer had arranged for separate dining facilities for several Brahman students at the request of their parents. Although Gandhi attempted to intervene through a compromise resolution, the controversy split a number of Brahman and non-
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