Polity Notes 11

CONCEPT OF EQUALITY- USA v/s INDIA

The concept of equality is a cornerstone of modern democratic societies, yet its interpretation and application vary significantly. An ideal egalitarian society, one with a complete absence of class or social hierarchies, remains a theoretical construct. In practice, nations strive for equality through different philosophical and legal frameworks.

• Procedural Equality vs. Substantive Equality:

  • This dichotomy represents two major approaches to achieving equality. The debate between them has been central to political philosophy.

  • Procedural Equality (Formal Equality/Equality of Opportunity): This approach emphasizes the creation of a ‘level playing field’ where all individuals are subject to the same rules and procedures, regardless of their background. It focuses on removing formal barriers to opportunity.

    • Philosophical Roots: This concept is deeply rooted in classical liberalism and libertarian thought, exemplified by thinkers like John Locke and more recently, Robert Nozick. In his work “Anarchy, State, and Utopia” (1974), Nozick argues for a minimal state that protects individual rights but does not engage in redistributive justice, epitomizing the procedural approach.
    • The US Model: The United States Constitution, particularly the Fourteenth Amendment (1868) which guarantees “equal protection of the laws,” is a prime example of a framework emphasizing procedural equality. The American dream is predicated on the idea that anyone can succeed through merit and hard work if formal discriminatory barriers are removed.
    • Implementation in the USA: While the Civil Rights Movement of the 1960s led to laws ending formal segregation, the focus remains on ensuring non-discrimination in processes like public employment. Instead of quotas or reservations, the US government often provides supportive measures like free education (e.g., public schools), health facilities (e.g., Medicaid), and skill development programs. The aim is to equip individuals from disadvantaged backgrounds (historically, African Americans, Native Americans, etc.) to compete on merit.

  • Substantive Equality (Equality of Outcomes/Equity): This approach contends that true equality cannot be achieved merely by providing the same opportunities, as historical and structural disadvantages prevent certain groups from availing them. It seeks to achieve equitable outcomes by providing differential treatment to disadvantaged groups.

    • Philosophical Roots: This concept is aligned with social democratic and egalitarian philosophies. John Rawls, in “A Theory of Justice” (1971), proposed the ‘Difference Principle,’ arguing that social and economic inequalities are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society. Similarly, Amartya Sen’s ‘Capability Approach,’ elaborated in “Development as Freedom” (1999), argues that the focus should be on enhancing individuals’ capabilities (their real freedom to do and be what they value), which often requires substantive interventions.
    • The Indian Model: The Indian Constitution is a unique blend of procedural and substantive equality. It recognizes the deeply entrenched historical injustices of the caste system. Dr. B.R. Ambedkar, the architect of the Indian Constitution, strongly advocated for “positive discrimination” or “affirmative action” as a tool for social justice. The Constituent Assembly Debates reveal a consensus that formal equality would be insufficient to uplift communities subjected to centuries of oppression.
    • Implementation in India: India’s policy of reservations in education (Article 15) and public employment (Article 16) for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) is the most prominent example of substantive equality. The state actively intervenes to ensure representation and correct historical wrongs, focusing on the outcome (representation) rather than just the process (open competition).

• Rationale for Different Approaches (USA vs. India):

  • USA: The historical trajectory of the USA saw the rise of economic democracy (Industrial Revolution) and political democracy (universal suffrage) preceding the major push for social democracy. A strong capitalist ethos and a foundational belief in individualism led to a preference for procedural equality, where the state’s role is to ensure fair play rather than engineer outcomes.
  • India: India achieved political democracy at independence in 1947, but without a preceding industrial revolution or significant social reform on a national scale. The society was, and to an extent remains, characterized by deep-seated social stratification and economic disparity. The framers of the Constitution recognized that without substantive state intervention, political equality (one person, one vote) would be meaningless in the face of profound social and economic inequality.

• Discrimination vs. Affirmative Action:

  • Discrimination: In a legal and social context, this refers to making an adverse or unfavourable distinction against an individual or group based on prejudice (e.g., on grounds of race, caste, or gender). It is a negative concept that fosters inequality.
  • Affirmative Action (Positive Discrimination): This is a policy of favouring individuals belonging to groups regarded as disadvantaged or subject to past discrimination. It is a form of discrimination, but for a positive or constructive purpose—to ameliorate existing inequalities and promote social justice. The Indian policy of reservations is a form of affirmative action. The concept of Equity is central here; it involves being biased in favour of marginalized communities to correct historical imbalances.

ARTICLE 15 OF THE INDIAN CONSTITUTION CONTINUED…

Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. However, it is not an absolute right and contains several exceptions designed to promote substantive equality.

• Historical Context of Untouchability and Caste:

  • Harappan Era: Archaeological evidence from the Indus Valley Civilization (c. 2500–1900 BCE) indicates a well-organized, urban society with social stratification, as seen in the layout of cities like Mohenjo-Daro (citadel for the elite, lower town for commoners). However, there is no conclusive evidence for a caste system akin to the later Vedic period.
  • Vedic Period: The concept of four varnas (Brahmin, Kshatriya, Vaishya, Shudra) is first mentioned in the Purusha Sukta hymn of the Rigveda (c. 1500–1000 BCE). Initially, this may have been a classification based on occupation and temperament, with some mobility.
  • Later Vedic Period & Post-Vedic Era: With the widespread use of iron tools (c. 1000 BCE onwards), agriculture expanded, leading to settled life, surplus production, and the emergence of states (Janapadas and Mahajanapadas). As society became more complex and hierarchical, the varna system became more rigid, as codified in texts like the Dharmasutras and Dharmashastras (e.g., Manusmriti, c. 200 BCE–200 CE). This period saw the birth of the concept of ritual purity and pollution, leading to the marginalization of certain groups who performed ‘unclean’ tasks. These groups were often forced to live outside the main settlements, becoming the ‘untouchables’ or Avarnas (those outside the four-varna system). Historian R.S. Sharma, in “India’s Ancient Past” (2005), details how the expansion of agrarian society led to the absorption of tribal and forest-dwelling communities at the lowest rungs of the social hierarchy.
  • Post-Independence: To remedy these historical wrongs, the Constitution abolished untouchability (Article 17) and provided for reservations. Dr. Ambedkar initially suggested reservations for only 10 years, hoping for rapid social transformation. However, the persistence of caste-based discrimination and the use of reservation as a political tool for electoral mobilization have led to its continuation and expansion.

• Exceptions to the Rule of Non-Discrimination under Article 15: These exceptions empower the State to make special provisions for certain sections, reflecting the principle of positive discrimination.

  • Article 15(3): For Women and Children: This allows the state to make special laws and policies for women and children. It is a recognition of their vulnerable position in a patriarchal society and the need for protective measures.
    • Examples: Reservation for women in local self-governments (73rd and 74th Amendments), Maternity Benefit Act, 1961, Protection of Women from Domestic Violence Act, 2005, and schemes like the Mid-Day Meal Scheme for children under the Right to Education.
  • Article 15(4): For Socially and Educationally Backward Classes (SEBCs), SCs, and STs: This clause was added by the First Constitutional Amendment Act, 1951, to override the Supreme Court’s judgment in State of Madras v. Champakam Dorairajan (1951), which had struck down caste-based reservations in educational institutions. It permits the state to make special provisions for the advancement of these groups.
    • Examples: Reservation of seats in public educational institutions, fee waivers, and scholarships.
  • Article 15(5): Reservation in Educational Institutions (including private): Added by the 93rd Constitutional Amendment Act, 2005, this clause empowers the state to make reservations for SEBCs, SCs, and STs in admissions to all educational institutions, whether public or private, aided or unaided, except minority educational institutions. This was enacted to nullify the effect of the Supreme Court’s judgments in T.M.A. Pai Foundation (2002) and P.A. Inamdar (2005) cases, which had held that the state could not impose its reservation policy on unaided private institutions. This led to the 27% OBC reservation in central higher education institutions like IITs and IIMs. In Ashok Kumar Thakur v. Union of India (2008), the Supreme Court upheld this amendment but directed the government to exclude the ‘creamy layer’ from the OBC quota.
  • Article 15(6): For Economically Weaker Sections (EWS): Added by the 103rd Constitutional Amendment Act, 2019, this clause empowers the state to make special provisions for the advancement of any EWS of citizens. It allows for up to 10% reservation for EWS in admissions to educational institutions (including private, except minority ones). This reservation is in addition to the existing quotas. The criteria for EWS (e.g., family income) are to be notified by the state. This amendment was upheld by the Supreme Court in a 3:2 majority verdict in the Janhit Abhiyan v. Union of India (2022) case.

ARTICLE 16 OF INDIAN CONSTITUTION - EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT

Article 16 guarantees equality of opportunity for all citizens in matters of public employment. It prohibits discrimination on grounds ‘only’ of religion, race, caste, sex, descent, place of birth, or residence. Like Article 15, it also contains exceptions to enable affirmative action.

• Exceptions to Equality of Opportunity under Article 16:
  • Article 16(3): Residence as a Condition: While the general rule prohibits discrimination based on residence, this clause empowers the Parliament (not state legislatures) to prescribe residence within a state or UT as a condition for certain employments under that state/UT. This power is given to Parliament to maintain the unity of India and prevent excessive regionalism.
    • Example: The Public Employment (Requirement as to Residence) Act, 1957 was enacted but expired in 1974. Currently, special provisions under Article 371-D provide for such requirements in the states of Andhra Pradesh and Telangana.
  • Article 16(4): Reservation for Backward Classes: This allows the state to make provisions for the reservation of appointments or posts in favour of any “backward class of citizens” which, in the opinion of the State, is not adequately represented in the services under the State. This is the constitutional basis for reservations for SCs, STs, and OBCs in government jobs.
  • Article 16(5): Religious Institutions: This clause permits a law to require that the incumbent of an office related to a religious or denominational institution must belong to that particular religion or denomination. This protects the autonomy of religious institutions in managing their affairs.
  • Article 16(6): Reservation for EWS: Added by the 103rd Constitutional Amendment Act, 2019, this empowers the state to provide for a reservation of up to 10% of appointments or posts in favour of any economically weaker sections of citizens, in addition to the existing reservations.

RESERVATIONS

• Mandal Commission and its Aftermath:

  1. Appointment (1979): The Morarji Desai-led Janata Party government appointed the Second Backward Classes Commission under the chairmanship of B.P. Mandal (Article 340).
  2. Report (1980): The Commission identified over 3,743 castes as Socially and Educationally Backward Classes (OBCs), constituting 52% of India’s population (excluding SCs/STs). It recommended a 27% reservation for OBCs in government jobs and educational institutions. This figure was chosen to ensure the total reservation quantum remained below the 50% ceiling set by the Supreme Court in earlier cases like M.R. Balaji v. State of Mysore (1962).
  3. Implementation (1990): The V.P. Singh-led National Front government announced the implementation of the Mandal Commission’s recommendation of 27% reservation for OBCs in central government jobs. This led to widespread protests.
  4. Modifications (1991): The subsequent P.V. Narasimha Rao-led Congress government introduced two changes: (a) preference for the poorer sections within the 27% OBC quota, and (b) a separate 10% reservation for economically backward sections among the upper castes.

• The Landmark Indra Sawhney & Ors. v. Union of India (1992) Case (Mandal Case): The Supreme Court, by a 9-judge bench, examined the issue of reservation and laid down several key principles:

  • Upheld the 27% reservation for OBCs.
  • Introduced the concept of the ‘creamy layer’ and directed the state to exclude the advanced sections among OBCs from the benefits of reservation.
  • Ruled that reservation should not apply in promotions (though Parliament later enacted the 77th Amendment Act, 1995 to provide for this).
  • Capped the total reservation quota at 50%, stating that it could be exceeded only in “extraordinary situations.”
  • Struck down the 10% reservation for economically weaker sections among the forward castes, as the Constitution at the time did not permit reservation based solely on economic criteria.

• Recent Developments:

  • 103rd Constitutional Amendment Act (2019): Introduced a 10% reservation for Economically Weaker Sections (EWS) among those not covered by existing SC, ST, and OBC quotas. This amended Articles 15 and 16 to allow for reservation based on economic criteria.
  • Judicial Scrutiny: In Janhit Abhiyan v. Union of India (2022), the Supreme Court upheld the validity of the 103rd Amendment by a 3:2 majority, ruling that reservation based on economic criteria alone is permissible and that the 50% ceiling is not inviolable and applies only to reservations for socially backward classes under Articles 15(4), 15(5), and 16(4).

Prelims Pointers

• Procedural Equality: Focuses on equality of opportunity; associated with the US model.
• Substantive Equality: Focuses on equality of outcomes; associated with the Indian model of affirmative action.
• The Right to Equality in the USA is primarily derived from the 14th Amendment (1868) to their constitution.
• The Right to Equality in India is a Fundamental Right under Part III (Articles 14-18) of the Constitution.
• Equality Before Law: A British concept, negative in nature (absence of special privileges).
• Equal Protection of Laws: An American concept, positive in nature (equal treatment in equal circumstances). Article 14 of the Indian Constitution includes both.
• Article 15: Prohibits discrimination on grounds only of religion, race, caste, sex, or place of birth.
• Article 16: Guarantees equality of opportunity in public employment. Prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, or residence.
• First Constitutional Amendment, 1951: Added Article 15(4) to permit special provisions for SEBCs, SCs, and STs.
• 93rd Constitutional Amendment, 2005: Added Article 15(5) for reservation in all educational institutions (including private), except minority institutions.
• 103rd Constitutional Amendment, 2019: Added Articles 15(6) and 16(6) to provide for up to 10% reservation for Economically Weaker Sections (EWS).
• Mandal Commission (Second Backward Classes Commission): Chaired by B.P. Mandal; appointed in 1979; submitted report in 1980.
• Mandal Commission Recommendation: 27% reservation for OBCs.
• Indra Sawhney v. Union of India (1992): Also known as the Mandal Case.

1. Upheld 27% OBC reservation.
2. Introduced the ‘creamy layer’ concept for OBCs.
3. Set a 50% ceiling on total reservations.
4. Ruled against reservation in promotions.
5. Struck down 10% reservation on purely economic grounds.

• Janhit Abhiyan v. Union of India (2022): Upheld the 103rd Amendment providing 10% EWS reservation.
• Power to prescribe residence for employment: Vested exclusively with the Parliament [Article 16(3)].
• Special provisions for Andhra Pradesh and Telangana regarding residence: Provided under Article 371-D.

Mains Insights

GS Paper I (Indian Society):

1. Caste Identity and Reservation: The policy of reservation, while intended to annihilate caste, has been critiqued for reinforcing caste identities. Electoral politics often revolves around caste-based mobilization for reservation benefits, potentially strengthening rather than weakening caste consciousness. The debate is whether reservation is a temporary crutch that has become a permanent feature, perpetuating the very system it sought to dismantle.
2. Social Mobility vs. Elite Capture: Affirmative action has undeniably facilitated the creation of a Dalit and OBC middle class. However, critics argue that the benefits are often cornered by the ‘creamy layer’ within these communities, leading to a form of elite capture. This raises questions about the efficacy of the policy in reaching the most marginalized sections and the need for better targeting mechanisms.

GS Paper II (Polity and Governance):

1. Balancing Equality and Equity: The Indian Constitution grapples with the inherent tension between the formal equality promised in Article 14 and the substantive equality aimed for through the exceptions in Articles 15 and 16. The judiciary has played a crucial role in balancing these principles, from striking down reservations (Champakam Dorairajan) to upholding them with riders (Indra Sawhney) and expanding their scope (Janhit Abhiyan).
2. Federalism and Reservation Policy: The power to prescribe residence as a condition for employment is vested with the Parliament to prevent a ‘sons of the soil’ policy from undermining national unity. This reflects a constitutional check on regionalism. However, states have significant autonomy in identifying backward classes and implementing reservation in state services, leading to variations and political contestations across the country.
3. Judicial Review vs. Parliamentary Supremacy: The history of reservation policy is a classic example of the dynamic interplay between the judiciary and the legislature. Parliament has frequently enacted constitutional amendments (1st, 77th, 81st, 85th, 93rd, 103rd) to overcome judicial pronouncements, showcasing the ongoing dialogue and power balance between the two organs of the state on matters of social justice.

GS Paper IV (Ethics, Integrity, and Aptitude):

1. Compensatory Justice: The ethical foundation of reservation rests on the principle of compensatory or reparative justice. It argues that present generations of historically oppressed communities deserve compensation for the cumulative disadvantages their ancestors faced. The ethical dilemma arises in balancing this historical claim against the claims of individual merit of the present generation from non-reserved categories.
2. Merit vs. Social Justice: The debate on reservation often pits the principle of merit (efficiency, competence) against the principle of social justice (representation, equity). An ethical perspective would argue that ‘merit’ itself is not a neutral concept; it is often shaped by social and economic capital. Substantive equality seeks to create a more inclusive and just definition of merit that values representation and diversity as essential components of an efficient and legitimate public service.