We have noted that equality does not mean equal treatment to all. In fact, at times to fulfil the condition of equality, individuals are required to be treated unequally. This means, there is scope for reasonable and rational grounds for discrimination. Discrimination stands for ‘making an adverse distinction with regard to or distinguishing unfavourably from others.’54 Discrimination on reasonable grounds is admitted. If discrimination is for compensating for certain inabilities, weakness, or incapacities and is positive measure, it is called positive discrimination or reverse discrimination. This means, one is being discriminated to reverse an unfavourable condition or positively rectify the existing discrimination. It is through this method of reasonable and rational discrimination that various policy options such as positive or reverse discrimination, affirmative action, social engineering and social and distributive justice are pursued (see Fig. 9.1).
Figure 9.1 Equality and Discrimination
In general, equality before the law and equal protection of law, equality of opportunity and equality of results are taken as three aspects of equality. What are the exceptions that can be made under these three aspects? Equality before the law is to treat each individual as legal entity and extend equal treatment and rights to all. It is equal treatment to all in similar circumstances. However, there may be a case where due to certain deprivations, equality before the law may lead to or result in misrepresentation or injustice to the individual. For example, to protect married women against dowry related violence in matrimony, law provides that the primary responsibility of defence rests with the husband. This means as soon as a charge has been labelled of dowry violence, the husband is assumed as a culprit. However, otherwise the law provides that one is not guilty until proved. Similarly, a person when taken in custody by police has to be informed of the charge and arrest warrant has to be produced. However, if one is being arrested under terrorism related activities, reason for arrest may not be necessary. What we should note is that there are certain conditions in which equality of treatment may not prevail. Reasonable grounds for inequality before the law include: (i) protection of rights of weaker and vulnerable sections of society such as women, children, challenged persons, socially deprived, (ii) national security and integrity.
The Indian Constitution, for example, under Article 15, prohibits discrimination based on religion, caste, race, sex or place of birth. However, at the same time it talks about special provisions for women and children and socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes. Article 16 talks of equality of opportunity in matters of public employment. It also provides for reservation of appointments or posts in favour of backward classes. The court has upheld ‘reservation of seats for women in local bodies or in education institutions valid.55 Reservation for Other Backward Classes (OBCs) based on Mandal Commission report in employment has been implemented.
In India, grounds for unequal treatment have generally been identified with the view to secure:
- Welfare benefits
- Social and educational advancements
- Gender equality
- Compensating for historical and social deprivations
In Figure 9.1, positive or favourable distinction is suggested as a means of compensating historical and social wrongs. The principle of equality before the law and equality of opportunity is interfered with to reverse the discrimination that otherwise would occur if not interfered with. Here, discrimination is made to provide enabling conditions positively.
Principle of positive or reverse discrimination is applied for ensuring social justice, which aims at correcting historical wrongs or discrimination. In USA, such a policy is known as policy of affirmative action. This aims at dealing with the racial discrimination suffered by the Black people. Policy of affirmative action is a policy of preferential treatment and has been followed for giving special opportunity to Black people in the field of education, health care, housing etc. India, public policy of positive discrimination has been followed to provide preferential treatment in educational and technical institutions, employment, local bodies’ election for women. It is argued that the public policy of positive discrimination in India is an integral part of the social justice platform. Social justice in India relates to the issue of correcting social discrimination, which has historically prevailed against a section of society.
However, two factors may distort the intended objective of the public policy based on positive discrimination. Firstly, it has been pointed out that the operation of this public policy would necessarily lead to making the beneficiaries better off. This means the next generation may not claim the same treatment that the first generation needed. In this process, a section of the beneficiaries will be better off and they have been termed as the ‘creamy layer’ amongst the beneficiaries. It has been argued that the creamy layer should be excluded from getting the benefit of this public policy, as this would impair the more needy getting the benefits. The Supreme Court has excluded the creamy layer from benefits. Secondly, it has been argued that there is problem in identifying the actual beneficiaries as a variety of distortion occur in identification of beneficiaries such as presence of bogus and proxy beneficiaries, etc. Another aspect related with operation of this policy is what the Supreme Court pointed out in various pronouncements. The Supreme Court has mentioned that the special provisions mentioned under Article 16(4) relating to reservation of appointments or posts in favour of backward class ‘should be consistent with the maintenance of efficiency of administration’ mentioned under Article 335 of the Constitution of India.56
Principle of equality and inequality of treatment, as the case may be, are related to concept of justice. Concept of reverse discrimination provides the basis for social justice in India and affirmative action in USA. Social justice, many may argue, is based on the notion of social engineering where state and public policy intervention is sought to correct the past social distortions and reverse the discrimination in such a way that it is compensated. This compensation is in the form of giving a level-playing field, initial equality of opportunity, etc. However, a more detailed treatment will be given to the subject of justice—distributive justice or egalitarian conception of justice advocated by Rawls, libertarian conception of justice advocated by Nozick, conception of social justice as espoused by the Indian Constitution and persons like Ambedkar and others, Marxian conception of justice, etc.
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