BALANCING EQUALITY: UNRAVELING THE PRINCIPLE OF COMPENSATORY DISCRIMINATION IN INDIA

This article is written by Anshika Chaudhary of RMLNLU, an intern under Legal Vidhiya

ABSTRACT

This article explores the concept of the principle of compensatory discrimination in India, examining its historical roots, legal foundations, and impact on societal development. It delves into the constitutional provisions, such as Articles 15(4) and 16(4), that formalized affirmative action policies to rectify historical injustices. The discussion spans the success of these policies, the Supreme Court’s rulings, and a global perspective on compensatory discrimination, drawing parallels with countries like the USA, Belgium, Brazil, and China. The article highlights the ongoing debate on balancing equality with meritocracy and social harmony. It concludes by emphasizing the progress achieved through compensatory discrimination while acknowledging the persistent conflict between equality and positive discrimination, especially in the context of caste-based reservation.

Keywords

Compensatory Discrimination, Affirmative action, Constitutional provisions, social justice, Equality and meritocracy.

INTRODUCTION

Our Constitution guarantees justice and equality of opportunity to all its citizens. It also recognizes that equal opportunity implies competition between equals, and not ‘unequals’ and therefore identifying the inequality in our social structure India adopted the principle of equality as a fundamental value, aiming to address significant and noticeable inequalities. The constitutional strategies to counteract these inequalities were based on recognizing deep-rooted and accumulated group disparities. This approach has led to various initiatives, collectively termed as a policy of compensatory discrimination. The compensatory discrimination policy, commonly referred to as the reservation policy, represents a robust version of affirmative action designed to uplift and empower communities that have been traditionally marginalized, socially, and economically disadvantaged. It is crucial to note that the implementation of compensatory discrimination has been a subject of ongoing debate and discussion, with proponents arguing for its necessity to correct historical injustices and critics raising concerns about its impact on meritocracy and suggesting alternative approaches to address social inequalities. It has a mixed effect on equality. Positively, it addresses historical inequities by boosting the representation of socially and economically backward groups in vital sectors through reserved seats. This fosters inclusivity and fairer distribution of opportunities. However, concerns linger. Critics argue it may compromise meritocracy, prioritizing social criteria over individual capabilities, leading to potential stigmatization and inter-group tensions. The ongoing debate emphasizes the challenge of balancing equality with meritocracy and social harmony. Several countries have adopted this measure to uplift the weaker sections of society, including the USA, Belgium, Brazil, and even China.

COMPENSATORY DISCRIMINATION UNDER BRITISH RULE

Under British rule in India, compensatory discrimination was not explicitly enacted, as understood in the contemporary legal context. However, specific policies and legislative measures were implemented with implications resembling affirmative action. One notable example is the Morley-Minto Reforms of 1909, introduced separate electorates based on religion, reserving seats for various religious communities in legislative councils. While this did not directly address social and economic backwardness, it marked an early instance of attempting to safeguard the interests of specific groups through a form if reserved representation. Public employment and university reservations began while India was still under British rule. The British implemented reservation policies in public service posts in India, favoring Muslims, Christians, Anglo-Indians, and other communal groups. These policies aimed to adjust political balances, address the plight of the disadvantaged, and appease minorities. Many perceived these preferences as part of Britain’s divide-and-rule strategy, fostering discord among different segments of the Indian population to maintain dominance. Reservations applied only to job recruitment and not promotions within employment.

The explicit legal foundation for compensatory discrimination in India was laid after independence in 1947, with the adoption of the Constitution in 1950. It incorporated provisions such as Article 15(4)[1], which states that ‘Nothing in this article or clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and Article 16(4)[2] which says that ‘Nothing in this article shall prevent the State from making any provisions for the reservation of posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. This marked the formalization of affirmative action policies to rectify historical injustices and promote social justice. Over the years, India introduced laws and policies establishing quotas for scheduled castes, scheduled tribes, and other backward classes in areas such as education, employment, and political representation. These legal frameworks form the basis for the country’s contemporary compensatory discrimination concept. [3]

PROVISIONS FOR COMPENSATORY DISCRIMINATION IN THE INDIAN CONSTITUTION

The Republic of India, founded with the four-fold objective of ensuring justice, liberty, equality, and fraternity for its citizens, relies on the Constitution drafted by the Constituent Assembly. Articles 14, 15, 16, and 17 of the Constitution specifically guarantee the right to equality and address the upliftment of the underprivileged. The Constituent Assembly, formed in July 1946, established a special committee in December of the same year to address fundamental rights, drawing inspiration from various international documents. Influenced by India’s experience under British rule and the need to protect minorities, the Constitution includes specific provisions for political balance, such as reserved seats in state legislatures and the House of the People for Scheduled Castes and Scheduled Tribes. Some important ones are:

Article 15(3)[4]: This article permits the state to make any special provision for women and children. Because of this provision, a special commission for women has been established, and several women-friendly laws such as the Prevention of Domestic Violence Against Women Act, 2006 have been passed.

Article 15(4): This article allows the state to make special provisions for educationally and socially backward classes. A commission has been established each for Scheduled Castes, and Scheduled Tribes and these commissions report directly to the President.

Article 16(4): This article allows the State to reserve posts in government employment in favor of any backward class of citizens who, in the opinion of the State, are not adequately represented in the services.

Article 17[5]: It abolishes untouchability, and its practice in any form is forbidden. Any enforcement arising out of this shall be an offense punishable under law. 

Article 19(5)[6]: This allows the state to impose reasonable restrictions on freedom of movement and occupation to protect the interest of scheduled tribes.

Under Directive Principles of State Policy, specifically articulated in Articles 40, 42, and 45, efforts are directed towards providing various advantages to the weaker sections of society. These include provisions for reservations in Panchayats (local self-government bodies) for women and backward classes, ensuring free healthcare during pregnancy and childbirth, and preventing the exploitation of children. Article 46 of the Constitution[7] empowers the state to take special care in promoting of education and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections and to protect them from injustice. It cannot be challenged on the grounds that it violates the rights given in Part III of the Constitution. Article 44 strives to secure a uniform civil code for the citizens. In the case of Shah Bano v. Mohd. Ahmed Khan[8]and Sarla Mudgal v. Union of India[9], the Hon’ble SC, have directed the states to implement Article 44 of the Constitution to ensure equal treatment of women under all religions.

Article 164: This provision provides that in the State of Bihar, MP, and Orissa, there shall be a Special minister in charge of tribal welfare who may also be in charge of the welfare of the Scheduled Castes or any other backward class.

Article 275: This article allows grants in aid to states for promoting tribal welfare.

Article 330 and 332: Article 330 of the Constitution allows reserving seats for those from SCs and STs in Lok Sabha while Article 332 lays down a similar provision in legislative assemblies.

Article 335: This article was amended to permit the relaxation of qualifying marks for SCs and STs in examinations for educational institutes or job promotion.

Article 338, 338 A, and 339: These articles provide for establishing of the National Commission of SCs and STs. Under Article 339, the Center can direct the states to implement policies for the betterment of STs.

Article 340: The article allows the president to appoint a commission to investigate the conditions of socially and educationally backward classes and table the report in parliament.

These legal provisions collectively form the basis for compensatory discrimination in India, seeking to uplift and empower historically disadvantaged communities.[10]Top of Form

IMPLEMENTATION AND ITS SUCCESS IN INDIA

The policies and the measures implemented under the doctrine of compensatory discrimination have achieved significant success. Evident progress is observed in the integration of individuals from diverse castes. We can see that people of all castes share public transportation and travel in the same bus or train without any reference to caste distinction. Initially, the percentage of reservation (in the 1950 Constitution) provided reservation of 12.5 percent for the SCs and 5 percent for the STs but these percentages were subsequently enhanced in 1970 to 15 percent and 7.5 percent for SCs and STs respectively. Opportunities extended to individuals from backward castes have become respected scientists, engineers, and doctors. Because of this favorable treatment provided to these classes, a big chunk of them are now financially independent, whereas, in the past, they were confined to doing menial tasks such as sanitation work.

Similarly, women have experienced notable advancements because of compensatory discrimination. Initiatives like free education for female children and reservations in educational institutions have empowered half of the nation’s population, traditionally limited to domestic roles, to actively participate in building a prosperous future for our country. These policies have fostered awareness regarding their rights among backward classes and catalyzed social mobility. Most importantly, when a person from a community moves up to a position of power and financial well-being, it inspires other members of the community that they, too, can achieve many things.

SUPREME COURT’s STANCE ON COMPENSATORY DISCRIMINATION

• From Balaji to Rajendran: Caste as a Criterion for Backwardness

The SC first dealt with the criteria for classifying particular communities of Indian society as  backward in the case of Balaji v. State of Mysore[11]. In the Balaji case, the SC addressed whether caste alone could determine backwardness. In 1962, Mysore State’s reservation order allocated 68% of engineering and medical college admissions to Backward Classes, SCs, and STs, leaving 32% based on merit. Petitioners contended that it is irrational and violative of Article 15(4). The SC emphasized that reservations should uplift underprivileged sections without excluding qualified applicants from other communities. Balaji approved caste as a criterion but insisted it couldn’t be the sole factor; occupation and residence should also be considered.

In 1963, the Court addressed a case under Article 16(4) in Devadasan v. Union of India[12]. The issue was whether unfilled reserved government positions could be carried forward if exceeding fifty percent. Despite reaching sixty-four percent after moving forward, the Court upheld the fifty percent limit established in Balaji. In Chitralekh v. State of Mysore[13], the Court dealt with the issue of whether it is mandatory to consider caste, along with other factors, when determining backwardness. Therefore, the Court clarified Balaji’s principles: caste can be a relevant factor for backwardness but not the sole criterion. It added that while caste use is permissible, it’s not mandatory for determining social and educational backwardness.

In Rajendran v. State of Madras[14], the SC altered its stance, recognizing that a particular caste as a class of citizens eligible for reservation under Article 15(4). The Court endorsed the concept caste as a unit, not caste rank, should determine backwardness. It burdened the challenger to prove the unsatisfactory nature of the method used to identify backward classes.

• Thomas and Vasanth Kumar: New Thinking

In State of Kerala v. Thomas[15], the S.C. marked a shift in the interpretation of Article 16. The case involved a temporary exemption for SCs and STs employees from a promotion test, allowing promotion within two years without passing the test. The Court affirmed that reasonable classifications based on backwardness were permissible. The two-year exemption for these employees was deemed just and reasonable, providing additional time for exam preparation. Essentially, Thomas granted the government increased flexibility in implementing compensatory discrimination policies.

In Vasanth Kumar v. State of Karnataka[16], the SC was asked for an advisory opinion on criteria to identify socially and educationally backward classes. In four of five opinions, the Court accepted using caste as a unit for identification. One judge suggested considering an income ceiling alongside caste, preventing economically capable members from exploiting the preference system meant for the disadvantaged. However, another judge argued solely relying on an economic test, excluding considerations of caste rank.

• Indra Sawhney v. Union of India: Today’s Framework

In Indra Sawhney v. Union of India[17], the SC re-examined the validity of PM V.P. Singh’s order implementing the Mandal Commission’s recommendations. The Court clarified that Article 16(4) was not an exception but an explicit provision within Article 16(1), allowing for classifications and provisions for backward classes. It emphasized that reservations were not the exclusive means; other provisions like concessions and exemptions could also be employed. The Court recognized that backwardness, although social and educational, need not be both, and caste could be a criterion for identifying backwardness. It mandated an economic means test to include the economically well-off from reservation benefits. The Court maintained the 50% rule for reservations and disallowed reservations exceeding this limit, even in promotions. Additionally, it rejected an extra ten percent reservation for economically weaker sections outside the recognized backward classes.[18]

GLOBAL PERSPECTIVE OF COMPENSATORY DISCRIMINATION

This approach has been adopted globally in nations like India, the USA, Belgium, Brazil, and China. It is comparable to Affirmative Action in the US and is applied through measures such as seat reservation in educational institutions, job quotas, and preference in government contracts. In the US and South Africa, it focuses on blacks and ethnic minorities, while in India, it addresses caste and gender-based discrimination. Historically oppressed groups, such as Shudras and women, are beneficiaries of compensatory measures, along with the often-overlooked category of senior citizens.

The UK’s Equality Act of 2010 states that positive action can be adopted if there is a reasonable thought that women or other unrepresented people suffer because of discrimination in several areas, requiring circumstantial evidence and statistical analysis. Similarly, Sweden opposes Positive Discrimination.

In the US, Compensatory Discrimination is recognized as Affirmative Action, which provides for recruiting employees who are not adequately represented because of their origin to increase the diversity of racial and gender grounds. It promotes diversity but rejects fixed quotas like in India, deeming them illegal.

Africa supports the principle of Compensatory Discrimination due to its history of racial discrimination, but many countries prefer equal rights rather than this principle. While the principle of Compensatory Discrimination has been employed globally to address inequality around the globe and somewhat diminish the disparity between minorities and majorities, it frequently leads to reverse discrimination. Hence, the effectiveness of this principle of Compensatory Discrimination depends significantly on its application. [19]

LANDMARK CASE SHAPING COMPENSATORY DISCRIMINATION

California v. Bakke (1978)[20]

Allan Bakke (appellant) challenged the University of California, Davis Medical School’s admission policy, arguing that the school had set aside several slots for students from underrepresented minority groups, a process known as affirmative action. He claimed this policy was unfair because he was denied admission because of the reserved slots for minority students.

The Supreme Court had to evaluate the legality of the school’s admission policy. Justice Lewis F. Powell’s ruling indicated that although strict quotas were not allowed, it was acceptable and permitted to consider race as one of several factors in admissions to achieve a diverse student body.

While the Court found strict quotas unconstitutional, it acknowledged that race could effect admissions decisions. This decision of the Court solidified affirmative action as a legal practice, intending to address historical inequities and foster diverse surroundings and set a precedent that any use of race in admissions must serve a compelling state purpose and be meticulously tailored to achieve that interest.

The case shaped the ongoing discussion on equity and diversity in education by establishing the precedent for how future issues related to affirmative action would be evaluated.

GROUNDS OF CONFLICT

Equality and positive discrimination together constitute the Right to Equality. Whenever positive discrimination is applied, it infringes on human rights and the right to equality in a concealed manner. While positive discrimination is acceptable when it produces desired and positive results, if it transforms into reverse discrimination, it becomes difficult to eliminate from society giving rise to conflict. 

The right to equality is a fundamental right for every citizen, irrespective of one’s background. Although positive discrimination may offer temporary relief, if the same is continued for the long term, then the already existing disparities between minorities and majorities will widen in several dimensions. Caste-based reservations promote hatred, resentment, ill-will, and contempt among the unreserved class, not just towards the reserved class but also against the entire governance system. Stretched over time, these sentiments can evolve into animosity and reflect in the conduct of the unreserved class.

As held in Ashok Kr. Thakur v. Union of India[21] [2008 SCC 6], “Reservation based on caste strengthens communalism.”

CONCLUSION

In conclusion, the principle of compensatory discrimination, enshrined in the Indian Constitution, reflects a commitment to addressing historical injustices and promoting social justice. The affirmative action policies, aimed at uplifting socially and economically backward classes, have played a crucial role in fostering inclusivity and providing opportunities to marginalized communities. While implementing these policies has witnessed success in various sectors, the ongoing debate surrounding compensatory discrimination underscores the challenge of balancing equality with meritocracy and maintaining social harmony.

One cannot develop as a nation when a significant segment of society remains far behind in the race of development, hindering their ability to enjoy equal opportunities, which are guaranteed as fundamental rights to all Indian citizens in the field of employment under Article 16(1) of the Constitution. This can be done by providing them with every possible assistance and support to empower them, to run shoulder-to-shoulder with their fortunate counterparts to pursue public development.

The success of compensatory discrimination is evident in the progress achieved over the years, with individuals from diverse backgrounds contributing significantly to various fields. The Supreme Court’s evolving stance on the criteria for backwardness, from caste-based considerations to a more nuanced approach, reflects the complex dynamics surrounding this issue. Internationally, compensatory discrimination finds resonance in countries like the USA, Belgium, Brazil, and China, each adapting measures to address specific historical and social inequalities. However, the effectiveness of these measures depends significantly on their application, and debates on the grounds of reverse discrimination persists.

REFERENCES

1. https://core.ac.uk/download/pdf/214079305.pdf
2. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/injlolw9&section=102
3. https://ippr.in/index.php/ippr/article/view/166#:~:text=The%20case%20study%20of%20compensatory,increases%2C%20despite%20all%20institutional%20constraints.
4. https://www.jstor.org/stable/23001438

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[1]India Const. art. 15(4).

[2]India Const. art. 16(4).

[3] Prior, E. (1996). Weiterleitungshinweis. https://www.google.com/. https://www.google.com/url?sa=i&url=https://core.ac.uk/download/pdf/214079305.pdf&psig=AOvVaw0f_tk9Wu-rMc3UUJXXtAzX&ust=1708867730294000&source=images&cd=vfe&opi=89978449&ved=0CAgQrpoMahcKEwjovpDBisSEAxUAAAAAHQAAAAAQCA.

[4]India Const. art. 15(3).

[5]India Const. art. 17(4).

[6] India Const. art. 19(5).

[7] India Const. art. 46.

[8] Shah Bano v. Mohd. Ahmed Khan, AIR 1985 SC 945.

[9] Sarla Mudgal v. Union of India, AIR 1995 SC 1531.

[10] Shuklaja, B. (n.d.). COMPENSATORY DISCRIMINATION: AN ANALYSIS OF THE JUDICIAL APPROACH. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/injlolw9&section=102.

[11] Balaji v. State of Mysore, 1963 AIR 649.

[12] Devadasan v. Union of India, 1964 AIR 179.

[13] Chitralekh v. State of Mysore, AIR 1964 SC 1823.

[14] Rajendran v. State of Madras, 1968 AIR 1012.

[15] State of Kerala v. Thomas, 1976 AIR 490.

[16] Vasanth Kumar v. State of Karnataka, 1985 AIR 1495.

[17] Indra Sawhney v. Union of India, AIR 1993 SC 477.

[18] Bishen, A. (2023, January 31). Compensatory Discrimination: Is a Theory of Social Construction of Target Population in Public Policy Possible in India? Indian Public Policy Review. https://ippr.in/index.php/ippr/article/view/166#:~:text=The%20case%20study%20of%20compensatory,increases%2C%20despite%20all%20institutional%20constraints.

[19] Nagarajan, K. (2009, March 1). Weiterleitungshinweis. https://www.jstor.org/stable/23001438.

[20] California v. Bakke, 438 U.S. 265 (1978).

[21] Ashok Kr. Thakur v. Union of India, 2008 SCC 6.

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