By Krishna Kant Choubey
Published on: January 4, 2024 at 11:27 IST
The concept of compensatory discrimination is a fundamental mechanism within legal frameworks around the world in the continual pursuit of societal equity and justice. This paradigmatic approach tries to solve systemic inequities and historical inequalities that have long persisted throughout various social structures.
Compensatory discrimination, also known as affirmative action in USA, exemplifies the corrective measures by attempting to level the rights for historically oppressed groups.
Interaction between the concepts behind compensatory discrimination and the legal frameworks within which these principles function is critical to understanding the delicate balance between righting past wrongs and preserving fairness in present-day chances.
The purpose of this article is to go thoroughly into the complexities of compensatory discrimination within the context of legal systems. It seeks to explicate the guiding principles of this approach by investigating their historical evolution, the legal frameworks that support them, implementation obstacles, success stories, and the shifting character of these principles in current society.
Rationale behind Compensatory discrimination
The rationale behind compensatory discrimination challenges the notion of meritocracy as the sole criterion for social progress. It contends that considering the social capital accumulated by historically powerful classes is essential, as merit measurement can be biased due to past prejudices.
Discriminatory practices hinder the acquisition of education and experience by marginalized groups, and hiring preferences often disadvantage them. The solution proposed is to assist these groups in achieving equal footing with others.
Compensatory discrimination is rooted in the acknowledgment of historical injustices and aims to rectify systemic inequalities by actively promoting the inclusion and advancement of marginalized groups.
It is a response to the understanding that true equality requires proactive measures to address and overcome the barriers faced by certain segments of the population.
Compensatory Discrimination in India
Compensatory discrimination in India, often referred to as affirmative action or reservation policies, is a legal framework designed to address historical and social inequalities among different communities.
In India, compensatory discrimination provisions primarily target historically marginalized and disadvantaged groups to address social and economic disparities. These provisions are aimed at uplifting specific communities that have faced historical discrimination, ensuring their equal participation in various spheres of life. The targeted groups in India include:
- Scheduled Castes (SC): Scheduled Castes, also known as Dalits, have been historically oppressed and discriminated against. Compensatory discrimination measures are designed to uplift and empower them by providing reservation in educational institutions, government jobs, and political representation.
- Scheduled Tribes (ST): Indigenous tribal communities, or Scheduled Tribes, have often faced isolation and marginalization. Compensatory discrimination provisions target them to bridge the gap in socio-economic indicators by offering reserved seats in educational institutions, government employment, and political representation.
- Other Backward Classes (OBC): The term “Other Backward Classes” encompasses a diverse group of communities that have faced social and educational disadvantages. Compensatory measures for OBCs include reservations in educational institutions, government jobs, and political representation to address historical inequities.
- Women and children: While not explicitly labeled as compensatory discrimination, various provisions in India target gender disparities. For instance, reservations for women in local governance (panchayats) and special provisions in laws like the Prevention of Domestic Violence Against Women Act aim to address historical gender-based discrimination.
- Economically Weaker Sections (EWS): In recent years, India has introduced provisions to provide benefits to economically weaker sections across communities. This includes reservations in education and employment for individuals falling under the EWS category, irrespective of their caste or community.
The Indian Constitution incorporates several articles and directives that form the legal framework for compensatory discrimination. ‘
Some key provisions include:
- Article 15(4) and 16(4): These articles allow the state to make special provisions for the advancement of socially and educationally backward classes, including SCs, STs, and OBCs, in educational institutions and public employment.
- Article 46: This article directs the state to promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections and protect them from social injustice.
- Reservation Policies: Various constitutional amendments and legislations provide for reservations in educational institutions, government jobs, and political representation for SCs, STs, OBCs, and, in some cases, women.
The implementation of compensatory discrimination provisions in India is an ongoing effort to ensure a more inclusive and equitable society by addressing historical injustices and promoting social justice.
The primary objective of compensatory discrimination is to ensure the inclusive participation of all segments of society in its development and to provide equitable benefits of growth. It acknowledges that certain sections have historically faced discrimination and aims to uplift them to a comparable level. Additionally, the reduction of social discrimination is crucial, aiming to make the elite of society reflective of its diverse composition and ultimately eliminate the need for compensatory discrimination.
Compensatory discrimination aligns with the concept of equality, understanding that identical treatment may not be just in unequal circumstances. The Indian Constitution incorporates provisions such as Article 15(4) and Article 16(4) to enable special measures for backward classes in education and government employment. These measures are not exceptions but instances of classification, ensuring that they do not violate the principle of equality.
In India, the implementation of compensatory discrimination is facilitated through constitutional provisions like Article 15(3), which allows special provisions for women and children, and Article 16(4), permitting the reservation of government employment for backward classes. The Directive Principles of State Policy also include articles promoting the social and educational interests of weaker sections.
The Civil Rights Act of 1964 includes compensatory measures within chapter VII, specifically focusing on Equal Employment Opportunities. These provisions empower affirmative action programs aimed at counteracting the enduring effects of past prejudice. Examining the incorporation of these measures into the legislative language and exploring the legal implications associated with their implementation is crucial for a comprehensive understanding of their impact.
Several significant legal cases in India have shaped the understanding and implementation of compensatory discrimination provisions. Here are some notable case laws:
M. R. Balaji v. State of Mysore (1963):
This case laid the foundation for the concept of reservations in education and government jobs. The Supreme Court, in its ruling, acknowledged the need for affirmative action to uplift socially and educationally backward classes. It emphasized that reservations should not exceed 50% and should not become a permanent feature.
Indra Sawhney v. Union of India (1992):
It is also known as the Mandal Case, this landmark judgment addressed the implementation of reservations for Other Backward Classes (OBCs) in education and government jobs. The Supreme Court upheld the concept of reservations but capped it at 50% while excluding the “creamy layer” within the OBCs from availing reservation benefits.
N. M. Thomas v. State of Kerala (1975):
In this case, the Supreme Court clarified that Article 16(4) of the Indian Constitution, which allows reservations in public employment for backward classes, is not an exception to Article 16(1) but an instance of classification. It emphasized that reservations are intended to achieve substantive equality.
Balaji v. Andhra Pradesh (2000):
This case dealt with the issue of reservations for Scheduled Castes and Scheduled Tribes in promotions. The Supreme Court held that the state can provide for reservations in promotions, but it should be based on quantifiable data showing backwardness and inadequacy of representation.
Ashoka Kumar Thakur v. Union of India (2008):
In this case, the Supreme Court upheld the constitutionality of 27% reservations for Other Backward Classes (OBCs) in educational institutions. It reiterated that the 50% ceiling on reservations, as established in the Indra Sawhney case, should generally be maintained.
Rajeev Kumar Gupta v. Union of India (2005):
This case dealt with the constitutional validity of reservations for Scheduled Castes and Scheduled Tribes in private unaided medical colleges. The Supreme Court upheld the reservation policy, emphasizing the need for social justice and affirmative action.
These cases highlight the complex legal issues surrounding compensatory discrimination, including reservations in education and public employment. The rulings reflect the ongoing efforts to strike a balance between ensuring social justice and addressing constitutional concerns such as the 50% cap on reservations and the exclusion of the “creamy layer.”
Compensatory Discrimination global perspective
This approach has been adopted by various countries, including India, the USA, Belgium, Brazil, and China. In the United States, it is termed Affirmative Action and is applied through measures such as educational institution seat reservations, public service job quotas, and preference in government contracts.
Various countries target specific groups for compensatory discrimination. 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 Sudras and women, are beneficiaries of compensatory measures, along with the often overlooked category of senior citizens.
Landmark Case Shaping Compensatory Discrimination
California v Bakke (1978)
Allan Bakke (appellant) filled a case against University of California, Davis Medical School’s admissions policy. As part of its commitment to encourage diversity, the school had set aside a certain number of slots for students from underrepresented minority groups, a process known as affirmative action.
Bakke, applicant, claimed that the policy was unjust because he was denied admission because of the reserved slots for minority students.
The Supreme Court had to assess if the admissions policy at the school was lawful. While strict racial quotas were not permitted, considering race as one of many variables in admissions to attain a diverse student body was acceptable, according to Justice Lewis F. Powell’s judgment.
Although the Court concluded that stringent racial quotas were unconstitutional, it accepted the premise that race might be a role in admissions choices and this ruling established affirmative action as a legal practice with the goal of addressing historical inequities and creating diverse surroundings and set a precedent that any use of race in admissions must serve a compelling state purpose and be carefully tailored to achieve that interest.
The case influenced the ongoing debate on fairness and diversity in education by establishing the precedent for how additional issues involving affirmative action would be considered in the future.
Conclusion
In conclusion, the implementation of compensatory discrimination provisions in India is an ongoing effort to ensure a more inclusive and equitable society by addressing historical injustices and promoting social justice. compensatory discrimination is rooted in the acknowledgment of historical injustices and aims to rectify systemic inequalities by actively promoting the inclusion and advancement of marginalized groups. It is a response to the understanding that true equality requires proactive measures to address and overcome the barriers faced by certain segments of the population.
Edited By: Bharti Verma Associate Editor at Law Insider