By Sanskrati Jain, Intern at Lex Maven
The worst form of inequality is to try to make unequal things equal.
–Aristotle
Equality is the epitome of a vibrant and lively democracy. A conception of justice is egalitarian when it views equality as a fundamental goal of justice. The notion of equality has inspired the entire human race, and implies all the religions and faiths of the world. The belief that all human beings have the same value regardless of color, race, gender, or nationality is a political ideal invoked by the concept of equality. It asserts that human beings deserve, due to their joint humanity, equal regard and respect. This notion asserts a sense of shared humanity that lies behind, for instance, the notions of universal human rights or ‘crimes against humanity’. Inequality threatens long-term social and economic growth, increases poverty, and damages the sense of fulfilment and self-worth of human beings. But here the thing that is to be focused on is that treating individuals at different levels is equivalent to continuing discrimination. Equality’s real meaning is to provide a level playing field, but putting unequal on a level playing field is unfair in itself. Equality as a concept that has to be just, fair and reasonable.
The very 1st Article of the Universal Declaration of Human Rights (hereinafter referred to as the UDHR), declares that all human beings are born free and equal in dignity and rights. And UDHR’s Article 7 explicitly proclaims that “all are equal before the law and are entitled without any discrimination to equal protection of the law.” Similarly, the International Covenant on Civil and Political rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 11e and 14), the International Convention on All Forms of Racial Discrimination (CERD, Article 5) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 28) also patronizes the concept of equality in some or other way. Keeping these international precedents in mind, India also enshrined the principles of equality in its constitution, or we can say that it is the bedrock of the Indian constitution.
The Indian constitution provides for equality before the law and equal protection of the law. And adheres to the idea of equality in its truest sense, and as per it “likes to be treated as like and unlike to be treated as unlike”, and believes in positive discrimination to provide people with equality and actually provide them with a level playing field. The idea of equality is enshrined in the preamble Indian Constitution and also in article 14-18 under Part III, which in providing social, economic, and political justice in the most just, fair, and reasonable manner possible. To achieve this, the constitution provides a window for positive discrimination towards disadvantaged groups.
What is a Reasonable Classification for the purpose of Positive?
The Supreme Court identified two factors in the case of Gopi Chand v. Delhi Administration[1], which are necessary for fair categorization. They are as follows:
- Reasonable categorization must be predicated on the necessity of intelligible differentia, which distinguishes those who are grouped together from those who are not. The Supreme Court held in the matter of State of Bombay v. F.N.Balsara[2] that the distinction made must not be fictitious or imagined, but must be genuine and real in character.
- The intelligible differentia must provide a link between the relevant statute and the goal to be reached. If the same is not sought, the differentia will be ruled void, which is a breach of Article 14.
- The Supreme Court held in the case of State of Kerala v. N.M.Thomas[3] that equity is breached when a decision is decided on the basis of reasonability. If equality is not founded on the principles of reasonability, the entire object is destroyed. Only then can equality be attained if a fair categorization is offered.
The Supreme Court of India held in Devadasan v. Union of India[4] that the phrase equality under Article 14 refers to equality among equals, not to equality among all citizens of the country. This Article protects an individual against arbitrary discrimination by not applying the concept of equality universally to people who are not in the same situation. This permits persons to be classified under Article 14 and various laws to be applied to different groups of people. In India, positive discrimination has always taken the shape of a reservation system. Positive discrimination against the downtrodden parts of society is permitted under Articles 16(4) and 4(a), as well as Article 15. In India, the positive discrimination programme was established to encourage marginalized people to participate in mainstream society. Along with SCs, STs, and OBCs, Muslims are included in this programme since they are equally representative of India’s minorities as the others. The reservation system in India was established with the goal of bringing minority classes and groups on par with the majority.
So basically for the purpose of differentiating between unequal groups as advantaged and disadvantaged, two tests are ought to be passed, i.e., Rational Nexus (the logical relation between an action and effect) and Intelligible Differentia (difference capable of being understood). Article 14 of the constitution states that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. However, this is not absolute state can impose reasonable restrictions on the basis of intelligible differentia and showing that there is a rational nexus for achieving the desired goal. The state may discriminate among groups but that has to be a positive one.
Conclusion
Positive discrimination and equality are both founded on the same viewpoint, but the former is a convergent approach, whilst the latter is a diverging one. Both approaches have the same aim of treating everyone fairly and without prejudice. As a result, under the purview of Article 14, the Indian Constitution encompasses both equality and equity. Special status has been granted to individuals who require it in order to meet the same challenges as the privileged. However, in the current circumstances, it is not available to those who are in desperate need of it, and as a result, the gap between minority and majority classes is widening every day. Positive discrimination is a method that has various flaws, necessitating the use of effective techniques. One of these is positive action, which the United Kingdom has adopted. Another kind of discrimination cannot be used to eliminate prejudice since it would exacerbate the problem rather than solve it. Further steps, similar to those adopted in the United States, should be taken to ensure that the executive is scrutinized before discrimination is implemented in order to eliminate loopholes and achieve the aim of achieving equality for everyone, regardless of their socioeconomic status.
[1] 1959 AIR 609
[2] 1951 AIR 318
[3] 1976 AIR 490
[4] 1964 AIR 179
