This article has been written by Oishika Banerji, an undergraduate student at Amity Law School, Amity University Kolkata. This is an exhaustive article dealing with the conflicting rights perspective between equality and positive discrimination.
India, a democratic country, provides its citizens with certain rights so that they can enjoy the same being a citizen of the nation. These rights are termed as fundamental rights provided in Part III of the Constitution of India. India is a diverse nation with people of different caste, creed, religion, and gender. They are all not equal in the eyes of law. Right to equality guaranteed under Article 14 of the Constitution provides that every person should be subjected to equality and equal protection of the law. In order to bring the unequal to equals, the Constitution lays down the concept of positive discrimination so that Article 14 is not contravened with.
While the Indian Constitution recognises that the unequal in the society can be uplifted to the same level as the equals by means of providing them with special status in form of reservation, the United Kingdom considers positive discrimination to be illegal under the Equality Act, 2010 as it restrains from providing equal treatment to the citizens as a whole. Article 14 of the Indian Constitution further establishes the principle of rule of law which says that law is the supreme command and no man can be above law. By this very principle, the meaning of Article 14 which provides equal protection in the eyes of law is established. It is only when everyone is similar in the eyes of law, the law can attain supremacy over men. Therefore positive discrimination was never considered to be in opposition of Article 14 but rather as an exception to Article 14.
Like India, the USA also promotes positive discrimination. But positive discrimination has been subjected to several challenges in India as well as other countries, for the reservation to the unequal has proved to be detrimental for the equals. Further, positive discrimination is delivering a positive impact on those who are not in need of the same and not to those who are in need. This loophole is increasing in India on a daily basis and therefore, the scope of positive discrimination is broadening each day while the motive is getting shadowed.
Thus comes the conflict of the perspective with which the rights are being provided. Positive discrimination is slowly turning to be in conflict with the very essence of Article 14 which is subsequently raising fingers towards the Indian Constitution. The way out from the same is to apply the rights wherever necessary taking into consideration their impact on the society and the people at large or rather bringing in amendments in the same so that the welfare of the people of this nation is not at stake.
Right to Equality
Article 14 of the Constitution guarantees the right to equality and equal protection of the law. It is a fundamental right available to every citizen residing in India as well as those outside the Indian territory. Right to equality by itself does not require any explanation for the meaning is present in the term only. Article 14 eliminates any kind of discrimination on the basis of caste, creed, colour, religion, gender thereby making all individuals equal in the eyes of law and equality will prevail among the equals.
Article 14 uses two expressions to describe itself which are:
- equality before the law
- equal protection of the law.
While equality before the law is a term of English origin, equal protection of the law has been adopted by the Constitution from the American Constitution. Rights can be categorized broadly into positive and negative rights.
The two ways in which any right is conferred to the citizens are provided below:
- Rights can be conferred to restrict a group of people from doing something
- Rights can be conferred by requiring another group of people to carry out something.
Thus, while one restricts something from being done, the other allows the things to be done. Both these sides are present in every right. Therefore when rights are conferred, they turn out to be positive for some while for the others they are negative. The fundamental rights that are conferred to the citizens, are there to benefit them in one way or the other.
Under Article 14, the citizens are provided with equality rights, while similar duty is provided to the State to ensure the functioning of such rights. The term equality before the law does not confer absolute equality to the individual for absolute equality is an impossibility and is difficult to achieve. Rather, equality before the law is recognized as the absence of privileged rights in terms of caste, creed, religion favouring certain individuals and leaving out the rest and also the equal subjection of individuals to the law of the land.
Therefore equality, before the law is equal treatment of individuals who are equal among themselves, and the same should be administered to ensure that like are treated alike. This right is similar to what Dicey propounded in England in the name of rule of law. This focuses on supremacy of law and thereby promotes the fact that every individual, whatever be his or her background, is subjected to the jurisdiction of the ordinary courts of the land. Rule of law also symbolises that no person should be made to go through ruthless, discriminatory, uncivilised treatments even when the law calls for so for maintaining the efficacy of the law. In the 14th amendment of the American Constitution is given a view that appears to be similar to the guarantee provided by Article 14 in the form of equal protection of the law. This part of the right to equality can be interpreted as being subject to equal law which applies to individuals who are in a similar circumstance.
Thus according to this part of the right to equality, it is the circumstances that influence the law that will be prevailing for all individuals placed in a similar situation. The privileges and the liabilities that are conferred to an individual should be the same for the others as well placed in a similar situation. By doing so, this expression of Article 14 removes discrimination as well. Both the expressions of Article 14, therefore, establish equality as well as equity with the latter carrying relevance than the former. To be treated alike should prevail as established by Article 14 which by itself eliminates the fact that the depressed and backward class should not be treated like those of the privileged ones that give rise to inequality.
Although Article 14 clears away all kind of discrimination, it does supports discrimination to some extent as well. The discrimination which is supported is in a positive way providing benefit to people and promoting the welfare of the people in the country. Such discrimination is necessary to establish Article 14 in the true sense. Right to equality is not absolute in nature and therefore consists of certain exceptions as well which are deemed to be necessary. Such exceptions have been provided below:
- Equality before law connotes different meanings for the private citizens and that of the public officials. This is because public officials have been provided with certain duties that are necessary to be executed in order to protect the country as a whole. For example, a police officer who has the right to arrest a person on reasonable grounds will have the right to arrest the person but such rights are not provided to private citizens. This does not infringe Article 14 but adds a sense of practicality to it.
- Certain classes of people are subjected to special rules which are different from private citizens of the nation because of the duty they have to carry out. The armed forces are subject to military laws while the doctors come under the regulations that are laid down by the Medical Council of India. Further, immunity to the President of India and the State governors from any kind of civil and criminal proceedings is provided under Article 361 of the Constitution. In this case, as well, the right to equality is not infringed.
- Special laws and rules are also provided to certain groups of people for the profession that carries out like in case of lawyers, doctors, nurses who are treated differently from that of the private citizens.
Thus, exceptions in case of Article 14 makes it clear that equality for all cannot be achieved, what can be achieved is the regulation of the provision among equal groups of people which can ensure equal treatment among the individuals.
In the case of Gopi Chand v. Delhi Administration, the Supreme Court recognized two tests which are essential for reasonable classification. They are:
- The reasonable classification must be based on the requirement of intelligible differentia which differentiates persons who are grouped together from those who are excluded from the group. In the case of State of Bombay v. F.N.Balsara, the Supreme Court was of the opinion that the distinction which is carried out must not be illusionary or imaginary but original and substantial by nature.
- The intelligible differentia must provide a relation between the concerned statute and the object that is aimed to be achieved. If the same is not sought, then there arises violation of Article 14 for the differentia will be considered as void.
- It was in the case of State of Kerala v. N.M.Thomas, that the apex court was of the opinion that equity is said to be violated if it is made on the basis of reasonability. The entire object behind equality is destroyed if it is not made on the grounds of reasonability. Therefore reasonable classification should be provided, only then can equality be achieved.
Positive Discrimination around the globe
If the term positive discrimination is divided and dealt with separately, the result is a positive bias that is necessary to be present to provide an opportunity for those who are not in the mainstream. But any kind of discrimination is in conflict with the human rights guaranteed to every individual around the globe. Positive discrimination is leading to a rise in unconscious bias in the United Kingdom. Employees who are being selected on grounds of positive discrimination on the basis of caste, gender, age are leading the companies to run under risk for the potential and capable employees are lacking significantly from the companies which are proving out to be detrimental. Several countries are adopting positive action in place of positive discrimination and both are widely different from each other.
While positive action is a legal term, positive discrimination is illegal in the United Kingdom. While positive discrimination aims to recruit more and more employees who are of the minority groups, positive action aims to bring in a balance in the workforce. It says that the entity should decide as to whom to take and whom not to so that a balance can be created and minorities and majorities are equally represented.
The Equality Act, 2010 states that positive action can be adopted if there is a reasonable thought that women or other unrepresented people are suffering due to discrimination on several spheres, then positive action can be taken to bring a change in the workforce of the companies. The same can be carried out through the means of circumstantial evidence, statistics of past years, qualitative analysis etc.
Similar to the United Kingdom, Sweden also stands against positive discrimination. In the United States, positive discrimination is recognised as affirmative action which signifies recruiting employees who are underrepresented because of their origin. The United States promotes positive discrimination like several other countries to increase the diversity of racial and gender grounds. But the United States is against the system of quotas like in India and thereby declares it illegal. While Africa stands in support of positive discrimination for its long history related to racial discrimination and apartheid, most other countries prefer equal rights rather than positive discrimination.
Thus, although positive discrimination has been one of the ways to eliminate inequality around the globe and reduce the gap between minorities and majorities till a specific extent, it has often acted as reverse discrimination for several cases. Therefore a lot depends upon the usage of positive discrimination.
Positive Discrimination towards women: A help or a distress?
Women have always been subjected to male dominance. Positive Discrimination that has been adopted by several countries around the globe have been facing turmoil as to allow the same or scrap it out. While one side of the coin says that it should be allowed for women as they have never received the majority recognition for the patriarchal world, the other side of the coin considers positive discrimination towards women if allowed will turn negative for men and create gender inequality. Several scholars are of the view that discrimination in any sense can never be considered to be positive, for discrimination symbolises bias that goes against the principles of natural justice.
There are several aspects that are attached to positive discrimination towards the woman. Many kinds of research have shown that positive discrimination increases the perception that women are incompetent for which they require special rights. It has also been observed that several women who join the workplace turn out to be incompetent. In such a case, they cannot be hired and if also they are recruited, the scope for the hiring of competent employees reduces. Therefore whether positive discrimination is a help or distress for women depends on how the country perceives it. If discrimination takes place on the basis of sex, then favouring one sex over the other does not remove the inequality but rather increases it to a considerable extent. This is because positive discrimination is a form of discrimination.
Just by the addition of the term positive does not make it suitable to be used. The usage of positive action turns out to be much more helpful compared to that of positive discrimination. Therefore perceiving positive discrimination as help can very well turn to become distressed. Equality cannot be achieved but inequality can take a toll because of the same.
Positive Discrimination: An Indian perspective
In the case of Devadasan v. Union of India, the Supreme Court of India observed that the term equality under Article 14 signifies equality among equals and not among every individual in the nation. This Article safeguards an individual from arbitrary discrimination by not making a universal application of the principle of equality for those who are not in the same position. This allows classification of individuals under Article 14 for initiating the application of different laws for separate groups of people. Positive discrimination in India has always been in the form of the reservation system. Articles 16(4) and 4(a) and Article 15 provide for the scope for implementation of positive discrimination against the depressed sections of the society. The positive discrimination programme in India was formed to bring about the participation of the disadvantageous groups in mainstream society. Along with SCs, STs and OBC, this programme also includes Muslims for they are equally representatives of minorities in India like the others. Reservation of the minority classes and groups to bring them on the same line as the majority is the aim with which the reservation system started in India.
Reservation is a method of encouraging the depressed and the ignored classes to participate in the decision-making process which gives them recognition like the other citizens of the nation. When the Constitution was being framed, India was divided by caste system and patriarchy which gave rise to the increasing gap between the minorities and the majorities.
While it was the elites who were considered to be the majorities, the minorities consisted of backward classes, who were recognized as Dalits, women and children. Therefore taking the same into consideration, the Constitution framers provided special provisions for the minorities along with reservation to make them equal to that of the majorities.
Therefore reservation in employment, education, and job sectors was provided and is being provided to the minorities to be able to bring them on par with the majorities. The Constitution recognized the depressed class people as Scheduled Caste, Scheduled Tribes and Other Backward Classes. Reservation has also been made for women, in order to remove the patriarchal system existing in the Indian society, under Article 15(3) of the Constitution. Reservation in terms of seats in transportation services like in buses, trains have been provided as well for women. This cannot be labelled as unconstitutional but as the way to establish the true form of Article 14.
In the case of Choki v. State of Rajasthan, the court held that having special provisions for the women is valid on grounds that it promotes equality. Special provisions have been made in the Indian Constitution in order to uplift the people who are socially and economically backwards. Article 16 provides for equal opportunity related to the matters of public employment. Further, Article 17 of the Constitution prohibits untouchability in all respects. Untouchability which has been distress for the depressed classes, the Dalits were necessary to be eradicated to provide them with an equal opportunity like those outside their group. The reservation that was provided to the depressed classes has been continuing and on sympathetic grounds, the SCs, STs and the backward classes are subject to enjoyment from all spheres.
The reservation system which was introduced since the day of the adoption of the Constitution has been subjected to no changes except the raising of the reservation quotas. This has become a huge problem for the country and particularly for those who are excluded from such reservation. In a landmark judgment by the Supreme Court in the case of Indra Sawhney v. Union of India, famously known as Mandal Commission Case, the court observed that reservation is valid only up to the mark of 50%. 22.5% of the educational institution seats are booked for the Scheduled Caste and the Scheduled Tribes.
Further 27% reservations have been provided by the government for those belonging to Other Backward Classes(OBC). The challenges that India has faced and is facing due to this discrimination are provided below:
- Although there is an increasing number of Scheduled Castes who are receiving and applying for higher education, the positions of higher levels are remaining vacant. This says that although there exists a reservation system, there is no implementation of the same.
- The caste system in India is still in existence.
- Middle-class people are including them under the ambit of the Scheduled Caste which is restricting the benefit of the system to reach to those who are in need of the same.
- Positive discrimination could not bring about development in the disadvantages associated with the economy for a large number of people belonging to depressed classes.
Therefore, what can be inferred from the above observations is that the aim with which positive discrimination was introduced in India in form of reservation system, has done very less good to the people for whom the system was introduced. The 81st Amendment Act, 2000 of the Constitution which was inserted by Clause (4)(B) in Article 16 of the Constitution, provides an end to the 50% ceiling existing in the reservation for the Scheduled Caste, Scheduled Tribes and Other Backward Classes due to increase in vacancies for there was a lack of eligible candidates. Thus this indeed was a step towards betterment for the establishment of equality rights.
Grounds of conflict
Both equality and positive discrimination are two parts of a single right called the right to equality. Whenever positive discrimination has been applied, human rights along with the right to equality have been infringed. Positive discrimination is good until it yields positive results but as soon as it starts acting as reverse discrimination, the same becomes difficult to be eliminated from society. Then arises the conflict. Right to equality is a right that is available to everyone irrespective of any background he or she comes from but what happens when there come individuals who are not even aware of such rights and have been facing oppression from the very beginning. Positive discrimination in any form can provide relief temporarily but if the same is adopted permanently then the discrimination which was existing will continue to exist rather will increase in dimensions. Therefore in order to eliminate the conflict between two different rights, one right should exist with the motive of the other right as well. Only then can discrimination be removed to ensure equal rights to all.
The government of the United States thought of carrying out an investigation in the application of positive discrimination or affirmative action after the Supreme Court came up with the case of Schuette v. Coalition to Defend Affirmative Action. The debate as to what are the parameters to consider race as a ground for carrying out affirmative actions in educational institutes is on a rise and the same has not reached a conclusion at present but the court, while passing a similar kind of judgment in the case of Fisher v. University of Texas held that before the application of affirmative action that is the positive discrimination in educational institutes, there must be strict surveillance or scrutiny of the same to avoid misrepresentation.
The Supreme Court in the case of Ashoka Kumar Thakur vs Union of India & Ors, disagreed with the Central Education Institution ( Reservation in Admission) Act, 2007 because the Act failed to provide a correlation between issue and the object sought to be achieved. Therefore it amounted to exercise of excessive powers and was detrimental for public interest at large. Therefore the positive discrimination was held to not be carried out in this scenario because the same acted as reverse discrimination for the pubic in general.
Further, the Supreme Court in the case of State of Uttar Pradesh vs Dr Dina Nath Shukla & Anr opinioned that every citizen of India has legitimate rights to seek employment or appointment for any post. Therefore, along with the claims of the depressed classes, the administrative efficacy should also be maintained in order to carry out the field of competition smoothly as provided under Article 335 of the Constitution. What can be inferred from the above-mentioned case laws is that the government, in order to bring in a balance between equality rights and positive discrimination, has often scrapped of the latter to avoid reverse discrimination. Also, there has been a situation where the courts have believed in harmonious construction of both. Whatever decisions have been made, are for the betterment of people and the nation at large.
Positive discrimination and equality are based on the same perspective but while the former is a convergent approach, the latter is a divergent method. The goal of both these approach is treating all the individuals equally without any kind of discrimination. The Indian Constitution, therefore, includes both equalities as well as equity under the ambit of Article 14. Special status has been provided to those who are in need of the same to face things similar to the privileged. But at the same time, in the current situation, it is not available to those who are actually in need of them and therefore the disparity between classes of minority and majority is increasing day by day. Positive discrimination is a way which has several loopholes and therefore comes the requirement of effective approaches. Positive action being one of them as have been adopted by the United Kingdom. In order to remove discrimination, another form of discrimination cannot be adopted for it will increase the problem rather than decreasing it. Further measures like the United States should be taken where the executive will undergo scrutiny before the application of the discrimination to avoid loopholes and secure the goal of bringing in equality for all however high or low the person is.
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