This article is written by Sawinder Singh. The article does a comparative analysis of the jurisprudence behind equal opportunity.

This article briefly expresses initial observations made after going through the legal literature (statutes and precedents) in three jurisdictions namely, United States, Australia and India regarding the possible reasons, while trying to answer a naive question, that, why the Equal Opportunity laws (laws relating affirmative action/reservation/special measures) are different in these three jurisdictions even though the legal systems are based on Common Law principles.

The laws around equality and social justice have always inspired passion among the masses. To the extent that US had to expunge in a bloody civil war for eliminating institution of slavery. Today the mode of debate has changed from battlefields to courtrooms, yet in my experience the task of comprehending the extent of bias in all its dimensions against the disadvantaged is still a lofty ambition. Though personally as far as readdressing the racial, gender or caste bias is concerned I would without doubt prefer the mode adopted by General William T. Sherman, than trying to explain to a bench in some Indian High Court the gist of R.K. Sabharwal Vs. State of Punjab who is not only unimpressed but unaware of the rationale behind the precedent. The doctrinal development of any legal principle is inherent duty of the judiciary, whenever it fails to do so, there is bound to be confusion, disagreements and procrastination in justice.

In my observation, it seems that some fundamental differences in these three jurisdictions as far as development of jurisprudence of Equal Opportunity laws/Affirmative Action is concerned, does exist. One basic premise of this article, if I am not wrong, is the idea to inquire into the reasons of the different projection of Equal Opportunity laws and policies in these three jurisdictions even though our politico-legal systems are purely based on the principles of common law. Apparently, and in my opinion, there exists fundamental difference in these jurisdictions in accepting the concept of Substantive Equality vis-a-vis Formal Equality.

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The linchpin of more harmonious Equal Opportunity laws, it seems, is the degree to which the concept of Substantive Equality has been, not only, adopted by legislation but also further developed by the concerned jurisdiction’s higher judiciary (jurisprudentially), to that degree there will be smoother statutory formation, implementation at the level of executive (partly because legislation is clearer in intent and language) and inevitable doctrinal development of Equal Opportunity Jurisprudence by judiciary. This becomes conspicuous, rather prima facie by observing the landmark judgments and debates in these jurisdictions.

It may be claimed that all the Equal Opportunity laws and policies that are framed in any jurisdiction are but reflection of the understanding of the concept of Substantive Equality i.e. the nature, objective, language, structure etc. of the concerned legislation will depend upon how the framers have understood and subsequently, whether or to what extent, the judicial interpreters have developed its relation with Formal Equality. It seems that if a research is aimed at comparing the degree of difference in the Equal Opportunity laws and identifying the reasons of the same among various jurisdictions (where all comparator jurisdictions are totally based on Common Law principles) then most fundamentally 1st of all the understanding of the interplay or dialectics or perhaps dichotomy of the above mentioned two notions of Equality within the concept of Equality must be understood.

I will very briefly share some extracts and share brief comments in order to put these ideas in context and so that you can guide me accordingly.

In case of US Supreme Court

The supremacy of Formal Equality/individual centric equality over the Substantive Equality/group subordination theory has been upheld by the court again and again right from 1898 till 2016. Even though there have been remarkable debate in judicial and scholastic corridors in the favour of Substantive Equality especially with more research being published around the reconstruction era. But the treatment of the whole concept by the US Supreme Court has been -Equality means either Formal or Substantial. And if any manifestation of Substantive Equality in form of Affirmative Action programs have to be carried then it must be carried under strict scrutiny. Which means that Substantive Equality/Special Measures are treated as a sort of discrimination and an exception to the common legal and political notion of Equality i.e. Formal Equality. For example-

  • Plessy Vs Ferguson (1898), Justice Harlan, even though this was a dissenting opinion still the Formal Equality is upheld and this decision overall, as we know, upheld the racial segregation-

“In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution is color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved …”

  • Regents of University of California Vs. Bakke (1978)-This was a landmark decision whereby the advances made by the US Supreme Court towards Substantive Equality in Brown Vs. Board and Duffnis is substantially curtailed, quotas are held illegal, the concept of scrutiny on the Affirmative Action is applied. Important to note is that the decision taken in this judgement is different to other two jurisdictions not because of different social context or other local factors but because of Hon’ble Supreme Court’s the consideration of positive action/special measures as a discrimination or an exception to the all-pervading conception of Equality i.e. Formal Equality- Justice Powell comments-

“Disparate constitutional tolerance of such [racial] classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them…”

  • Fisher Vs University of Texas (2016)- And recently in this decision the affirmative action program was upheld but because it survived the strict scrutiny test, yet, on a closer look, it seems to be the modern version of Plessy’s argument again repeated here by Justice Thomas-

“….government must treat citizens as individuals and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny.”

  • In case of Australian Judiciary-

After the successful Aboriginal referendum 1967, there have been many reforms in legislation in favour of Substantive Equality and especially in the attitude of Judiciary opposite to what we have seen in US. Not only there was effective ratification of ICERD and ICEDW, the acceptance of the concept Substantive Equality through Special Measures in Gerhardy and Jacomb are fine examples. In contrast with above jurisdiction, before introducing the amendment in Sexual Discrimination Act i.e. Section 7D, the precise question was whether Special Measures be termed as discrimination or whether Special Measures are exception to legal concept of Equality and I have many a times come across this famous extract of the second reading of the speech while introducing the Amendment Bill, of Attorney-General in House of Representatives-

“The legislation currently provides that an act which would otherwise be discriminatory for the purposes of the act is not unlawful if a purpose of that act is to ensure equal opportunity. The legislation currently treats special measures as discriminatory, but lawful — an approach which reflects the fact that the legislation is structured on an ‘equal treatment’ model under which any difference in treatment is prima facie discriminatory.

The amendment proposed in the bill makes two significant changes. First, it provides that special measures are not treated as a form of discrimination; instead, they would be considered as part of the threshold question of whether there is discrimination at all. Consequently, the ‘special measures’ provision will be moved from that part of the act which provides exemptions. Special measures should be presented and understood as an expression of equality rather than an exception to it.”

This above extract has been discussed in many subsequent judgments in Australia including Jacomb and Walker Vs. Cormack. This argument seems to be accepted by court as the inherent object of Section 7D and of Special Measures/Affirmative Action in general in Australia. In paragraph 60 of Jacomb court held-

“…The phrase ‘substantive equality’ means equality in substance or de facto equality, in contradistinction to notional equality or formal equality. Subsection 7D(2) provides that ‘special measures’ authorised by subs 7D(1) do not give rise to discrimination under s 5…”

There can be a plethora of legal arguments and extracts from various judgments in Australia which indicate a marked difference between the ‘degree’ of acceptance of the concept of Substantive Equality from that of US. I must also mention here that I am aware of some obvious loopholes and weaknesses in the same Australian judgement. Many scholars have pinpointed such short comings and lost chances whereby judiciary could have developed a certain doctrine or at-least could have gone deeper in the concepts in relation to Substantive Equality and Affirmative Action but didn’t. Irrespective of this factor, in my opinion in Gerhardy, Section 8 of Racial Discrimination Act is discussed by the court and the degree of necessity and acceptance  of Special Measures and Substantial Equality is much more than in the previously discussed jurisdiction. Moreover it seems that Australian legislation and judiciary wants to treat Substantive Equality not as an exception but as an expression of Equality itself. How far they have come is matter to be seen.

  • Supreme Court of India

Indian judiciary dealt with same struggles as well and even though India was one of the first democracies to adopt the concepts of Substantive Equality as well as Affirmative Action programs more than a decade earlier than US and much earlier than Australia, the dichotomy of Substantive and Formal Equality is expressed in the language and text of the constitution of India.

Yet from the very first constitutional challenge to the concept of reservations (Special Measures programs), Supreme Court has slowly developed its jurisprudence of Equality. Now it seems that this jurisdiction has never been able to -atleast-  at the level of higher judiciary strike a perfect balance between Substantive and Formal Equality. For example in matters like  Ajit Janjhua Vs. State of Punjab (I, II & III), Union of India Vs. Virpal Singh Chauhan, Supreme Court of India itself in order to ‘strike balance’ between the Substantive and Formal notions of Equality introduced the concepts like ‘catch-up principle’ and ‘consequential seniority’ etc in the policy and law relating to employment and public service i.e Service Law.

And it is pertinent to mention that Indian Parliament and Supreme Court have been at the logger heads with each other in this aspect. This classic struggle of legislation and judiciary mainly have been around three constitutional amendments of Article 16 of the Constitution of India, adding clause 4 and subclause A and B in 77th, 81st and 85th Amendment of the constitution. And after every above mentioned respective amendment by the parliament, a constitutional challenge is made claiming that concept of Affirmative Action  is ultra-vires to the constitutional scheme of Formal Equality under Article 14.

Consequently, Supreme Court of India other than clarifying or going to the core of the issue that whether the concept of Substantive Equality is an exception to Equality (Article 14) or a clear aspect of it, have been trying to balance the Formal Equality. Supreme court considered that these Constitutional amendments made by parliament have unjustly given too much weight-age to Substantive Equality/reservations. And Supreme Court of India performed this ‘balancing act’ by adding the above mentioned concepts (Catch-Up Principle & Consequential Seniority) in Service and Employment laws.

Subsequently, and most interestingly, in one later landmark judgement i.e. M. Nagraj Vs Union of India  Supreme Court Acknowledged that these concepts are produced out of Service jurisprudence NOT Equality Jurisprudence. By putting its earlier efforts of balancing Substantive Equality and Formal Equality in the category of Service Jurisprudence, Supreme Court effectively was able to claim that whole of Article 16(4) is merely considered as ‘enabling provision’ than inherent part of it. Since, Article 16 is about Equality of Opportunity in matters of employment and is situated in Part III of the constitution under the heading of Fundamental Rights, the consideration of Article 16(4) as exception to 16(1) and related concepts as not the result of exercise in Equality Jurisprudence but Service Jurisprudence, indirectly Supreme Court applied Substantive Equality as exception to Formal Equality unlike what we have seen in Australian jurisdiction. the proponents of Formal Equality see the existence of Article 16 as a whole a threat to Formal Equality and Article 16(4) specifically.

Having said that, I must also mention that, in latest landmark judgement (M. Nagraj) around reservations, Supreme Court of India may have applied reservation law as Substantive Equality is exception to Formal but-

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  1. In contrast to American legal scene, the DEGREE of acceptance of Affirmative Action is quite high and there have been fierce judicial debate in favour of Substantive Equality, some core extracts fromThomas Vs State of Kerala(1976) etc. have been discussed in Jacomb, Gerhardy and even in some later American judgements.
  2. Moreover, another Constitutional Amendment Bill regarding Article 16(4), with clear intention to nullify the affects of M. Nagraj i.e. 117th Amendment  Bill is pending in Indian Parliament i.e. in Lok Sabha (Lower House/House of People) whereas Rajya Sabha (Upper House/House of Lords) has already passed it. M.Nagraj itself is under judicial challenge in Supreme Court quite recently but I am afraid the grounds are not the core issues that we have discussed here.

The list of the constitutional challenges to Affirmative Action programs is long but in India, unlike US, to some extent the Affirmative Action and Substantive Equality has not only been accepted but developed, yet, at the core level it has not been accepted by the judiciary that Substantive Equality is inherent expression of Formal Equality even though legislation has been more than clear in it and many judicial dissenting opinions do exist.

In my observation and in this manner these three, our intended, comparator jurisdictions do differ more or less with each other in its understanding of the basic philosophy of Equality, its different aspects.

There also many other issues I would like to mention-

  1. In one of the papers authored by Sarah Stephens a contradiction has been mentioned regarding in between Australian statutes i..e SDA (Sexual Discrimination Act) and Equal Opportunity for Women in Working Places Act, which if boiled down will come back to the same  question that what vision of Equal Opportunity each legislation is holding?
  2. I have also observed that there may be some contesting versions of Substantive Equality itself. For example- Is Substantive Equality only equality of outcome or whether it can also be addressed as Group Subordination theory whereby the disadvantaged position of a person is by virtue of the community he/she belongs? The definition, ambit and ingredients of Substantive Equality in different jurisdictions may be are treated more or less differently. In this regard Professor Sandra Fredman’s paper- Substantive Equality revisited, gives comprehensive clarity of the issue which is fundamental for any statute formation or interpretation.
  3. Importantly, it is a common mistake as far as Equal Opportunity laws are concerned that the different jurisdictions have come up with different Equal Opportunity laws solely because of different social contexts of their respective societies. This is a basic undeniable fact that different jurisdictions will always have different social circumstances but it must be bore in mind that the basic legal principles of genuine democracies based on common law are same irrespective of the of the social circumstances. For example separation of church and state, Audi alteram partem, burden of proof on prosecution in criminal proceedings and even the notion of Formal Equality is same in three comparator jurisdictions. The difference in the framing of the Equal Opportunity laws and policies is totally justified on the social facts but certainly it raises eyebrows when one jurisdiction considers concept of Substantive Equality as exception to Formal Equality, another jurisdiction considers concept of Substantive Equality as expression of Equality and perhaps different members of bench in same jurisdiction hold different views and often come up with different conclusions while interpreting same set of laws. So in my point of view, this jurisprudential confusion and disagreement on the this issue may form the core of the reasons of different and often opposite views regarding Equal Opportunity laws in the above mentioned three jurisdictions.

Certainty and clarity are the strengths always in demand when any statue is enacted or is being interpreted by any bench yet the basic force behind Substantive Equality seems to be the compassion and morality. The concept well-articulated by Ronald Dworkin in his theories but for now it is important that the same compassion and morality be fashioned in tangible, clear, lucid and effective statutes redressing structural biases against large groups of people across the globe based on different factors. The core of the issue is philosophy behind the laws of Equal Opportunity which must be streamlined, this philosophy is nothing but actually a processed and presentable expression of a heightened legal-political consciousness of 21stcentury vision of Equality. Lest we forget the consequences of our negligence and the collective karma it always bore, “…Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago…”- Abraham Lincoln, II Inaugural Address, 4 March, 1865.

References-

 

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