In any society across the world, there are certain groups of people who have suffered historical disadvantages due to institutionalized mechanisms of inequality and structures of inequality. These groups need specific ameliorative measures and compensatory mechanisms so that the historical wrong can be undone. These measures are brought about in ways like Positive Discrimination, Reverse Discrimination, Compensatory Discrimination, Positive Action, and Affirmative Action. Discrimination on the basis of certain attributes such as age, sex, race, or disability is not always against the law (or the rule of law).
The term ‘Positive Discrimination’ is sometimes used to refer to ‘positive measures’ or ‘special measures’. Special measures aim to foster greater equality by supporting groups of people who have been disadvantaged in the past so that they can access opportunities like any other citizen in the community.
POSITIVE DISCRIMINATION – A Global Perspective
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 developed countries like the United Kingdom, resulting in detrimental outcomes. Several countries are adopting positive action in place of positive discrimination – both being entirely different. While positive action is a legal term, positive discrimination is illegal in the United Kingdom. Positive Discrimination aims to recruit more employees who belong to the minority groups, while Positive Action aims to bring in a balance in the workforce.
The UK enacted the Equality Act in 2010 which states that positive action can be adopted if there is a reasonable thought that women or other unrepresented people are suffering due to discrimination in several spheres, but a means of circumstantial evidence, statistics of past years, qualitative analysis, etc. is to be carried out to substantiate the rationale behind adopting a positive action measure.
Similar to the United Kingdom, Sweden also has stood against Positive Discrimination.
In the United States, Positive Discrimination is recognized as affirmative action which provides for recruiting employees who are underrepresented because of their origin. The USA promotes Positive Discrimination like several other countries to increase the diversity of racial and gender grounds. However, it is against the system of quotas (fixed reservation) like in India, and therefore, has made such policies illegal.
Talking about Africa, it stands in support of Positive Discrimination due to its long history of racial discrimination. It is observed that most 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 to a certain extent, it has often resulted in reverse discrimination. Therefore, a lot depends upon the usage of Positive Discrimination.
POSITIVE DISCRIMINATION – An Indian Perspective
In the case of Devadasan v. Union Of India [1964 AIR 179], the Supreme Court of India observed that the term ‘equality’ under Article 14 of the Constitution of India signifies “equality among equals and not among every individual in the nation.” Article 14 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. It allows the classification of individuals 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 or quotas.
Articles 15 and 16 (4) (4a) of the Constitution provide for the scope of implementation of Positive Discrimination against the depressed sections of the society. The Positive Discrimination program in India was formed to bring about the participation of disadvantaged groups in mainstream society. Examples of positively discriminated groups in India include the Scheduled Castes, Scheduled Tribes, women, Persons with Disabilities, Other Backward Classes, religious minorities, and Economically Backward Classes.
Reservation is a method of encouraging the deprived and the ignored classes to participate in the decision-making process which gives them recognition and representation like other citizens of the country. At the time of framing of our Constitution, India was divided socially by the caste system and patriarchy which gave rise to the increasing gap between the minorities and the majorities. While it was the elite class who were considered to be the majority, the minorities comprised of backward classes (Dalits, women, and children). Taking the same into consideration, the Constitution drafters provided special provisions for the minority groups along with reservations to uplift them and bring them on par with all other citizens.
Positive Discrimination by way of the reservation is carried out in Education, Employment, and Public Representation, inter alia. Reservation can also be seen in terms of seats fixed for women, children, and elderly citizens in Transportation services in public buses and trains.
In the case of Cohki v. State of Rajasthan [AIR 1957 Raj 10], the Court held that special provisions for women are 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 backward. Article 16 provides for equal opportunity related to matters of public employment. Further, Article 17 prohibits untouchability in all respects.
In the landmark case of Indra Sawhney v. Union Of India [AIR 1993 SC 477], popularly called the Mandal Commission case, the Apex Court observed that reservation is valid only up to the mark of 50%.
22.5% of the seats in Educational Institutions are reserved for the Scheduled Castes and Scheduled Tribes, and 27% for Other Backward Classes. The 103rd Constitutional Amendment has introduced reservations for a new group – Economically Weaker Sections.
GROUNDS OF CONFLICT
Both equality and positive discrimination are two parts of a single right called the – Right of Equality. Whenever positive discrimination has been applied, human rights along with the right to equality have been infringed in a disguised manner. Positive discrimination is welcome so long as it yields positive and desired results, but as soon as it starts acting as reverse discrimination, the same becomes difficult to be eliminated from society giving rise to a conflict.
The right to equality is a fundamental right available to every citizen irrespective of one’s background. Positive Discrimination in any form can provide temporary relief, but if the same is continued for a long term, then the already existing discrimination (the gap between the minorities and majorities) will widen in several dimensions. Reservations based on caste promote hatred, ill-will, resentment, and contempt amongst the unreserved class, not only against the reserved class but also against the whole system of governance. Stretched over time, these feelings of resentment turn into animosity and reflect in the conduct of the unreserved class.
As held in Ashok Kr. Thakur v. Union Of India [2008 SCC 6], “Reservation based on caste strengthens communalism.”
Positive Discrimination and equality are based on the same perspective; however, while the former is a convergent approach, the latter is a divergent method. The ultimate goal of both these approaches is to treat all individuals equally without any kind of discrimination.
The Indian Constitution includes both the concept of ‘equality’ and ‘equity’ under the ambit of Article 14. However, the current approach of Positive Discrimination has several loopholes and therefore, effective approaches are required. Positive Action, being one of them, has been yielding positive results in the United Kingdom.
In order to remove discrimination, another form of discrimination cannot be adopted, for it will end up adding to the problem rather than solving the problem. Further, measures like in the United States should be taken where the executive undergoes scrutiny before applying any kind of positive discrimination to avoid loopholes and secure the goal of establishing equality in the society.
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