Equality of opportunity relates to initial conditions or circumstances with which people start and seek various facilities, rights and outcomes. Equality before law or equal protection of law provides legal conditions of enjoying equal access to various facilities and means. Formal equality implies equality of human beings as possessor of rights and liberties or equality before law as juristic personality. On the other hand, equality of opportunity relates to level playing field in initial conditions or circumstances. In this way, it is not merely a matter of equality before the law, but also provision of such initial conditions, which help start on equal footing. For example, if education is important for employment, equality of opportunity of employment necessarily requires that there is corresponding equality of education. If there is no equal access to education, the equality of opportunity to employment is no equality.
At times, equality of opportunity may lead to the opposite of what formal equality requires. Formal equality requires equality before the law or equality of human beings. However, equality of opportunity requires that everyone should have an equal starting point, irrespective of results. In this, it is not enough to say that a child who has money to get admission in a school and a child, who does not have, enjoy the same equality of education. To the extent that there is no explicit prohibition on a particular ground, equality of the law gives equality of access. This may be formal equality. On the other hand, equality of opportunity demands that both the children at least should start on equal footings in terms of admission in school. If one does not have money to get admission, a level playing field requires that assistance of the State should be given. Advocates of equality of opportunity maintain that this is required primarily because social, economic and other existential circumstances facilitate some to start much ahead of others. Many lag behind not because of their natural talents and intelligence but because of their initial conditions.
Equality of opportunity, in essence, requires that there should be state intervention to mitigate certain initial inequalities which arise due to various factors: (i) social inequality such as caste and other forms of discrimination, (ii) economic inequality including inheritance and property rights, (iii) geographical location such as urban or rural location, (iv) family background such as educated or uneducated, etc. Without any prejudice and only as an illustration, let us take an example. Is there equality of opportunity between the son of a rich person having inherited his father’s property, employed with a multinational corporation and settled in Delhi with the son of a landless poor person, seasonally employed and settled in a remote rural corner of India? Have the two equal opportunity to get education or employment unless there is external assistance for the second?
It is generally recognized that a liberal constitution will neither abolish inequality of property nor inheritance. In such a condition, the option available to ensure equality of opportunity is to adopt a policy of positive discrimination. Positive discrimination is also known as reverse discrimination or affirmative action. This means discrimination amongst those who are unequal to ensure equality of opportunity. It implies that if those, who are unequal, are treated equally as formal equality requires, it will lead to inequality. Here, equality of opportunity implies compensating for initial inequalities. In India, Article 15 of the Constitution prohibits discrimination on grounds such as race, caste, sex, etc. and Article 16 provides equality of opportunity in matters of public employment. However, both these Articles have exceptions to their general provisions and ensure positive discrimination for women, children, socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes in education, employment, public offices, etc. Apparently, this is in recognition of the social injustice that prevailed historically in caste terms. In USA, positive discrimination or affirmative action has been adopted against the racial discrimination of blacks. Equality of opportunity relates to compensating for inequality arising either due to social, historical or economic disadvantages. It seeks to ensure that initial starting point provides equality and level playing field. However, it is not concerned with equality of outcomes.
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