92 IND/AN JOURNAL OF LAW AND JUSTICE

EQUALITY AND PROTECTIVE DISCRIMINATION UNDER

THE CONSTITUTION OF INDIA

Om Prakash Sharma·
•

In India, the constitution intends to establish a welfare state; actually it

is the role of law which adds to the relevance and validity of law. Therefore,
the concept of the rule of law is a dynamic one which not only aims at
safeguarding and advancing the civil and political rights of the citizens of the
country but also at establishing social, economic, educational and cultural
conditions under which their legitimate aspirations and dignity may be realized.
Further, whenever social inequality exists or an economic injustice is found, a
democratic state enters the arena, and with the aid of law, establishes social
equality and removes economic injustices.' Therefore, it is, one of the objectives
of the Constitution to secure to all citizens equality of status and of opportunity
and to promote among them all fraternity assuring the dignity of the individual
and the unity and integrity of the nation. As the right to equality and prohibition
ofdiscrimination on grounds of religion, race, caste, sex or place of birth against
any citizen were not enough to make the basic human right meaningful to the
weaker sections, the framers of the constitution made additional provisions
requiring positive state action and permitted reservations in admissions to
educational institutions and in appointment of different state services. 2
For these reasons we will have to travel beyond the letter of the
constitution to defend and justify affirmative actions that are urgently needed
either to remove the existing grossly unjust inequalities in our society or at
least to raise all sections of the society to the level of human existence and to
assure them their due "dignity" expressly envisaged in the preamble of the
constitution 3• The preamble of the constitution assures justice social, economic
and political as well as equality of opportunity and status to every citizen of
India. In pursuance of this assurance Article 14, 15 and 16 have been enacted
which embody certain fundamental rights guaranteed by the constitution.4
The claims based on the right to equality pose formidable difficulties in

* lecturer- in- law, Department ofLaw, North Bengal University, Darjeeling.

I. H.C. Upadhyay, Reservations for Schedule Caste & Schedule Tribes, Anmol
Publications, 4378/48 Ansari Road, Darya Ganj - New Delhi.
2. P.P. Rao, 42 JlLI (2000) p. 193.
3. M.P. Singh, Jurisprudential Foundation of Reservation, 18, IBR (1991), 246.
4. Justice S.M.N. Raina, Reservation with justice, 1990 (III) CILQ, P-1
 95

have been treated as untouchable and denied the right of association with
other members of the society. They have suffered all kinds of indignities and
disabilities not as individuals but as members of a group or caste and that
entitles them to special treatment as members of a group without violation to
the right to equality of the non-members. The individual's right to equal ity in
this situation is given due recognition in so far as the members of the group
can compete among themselves for the Iimited goods available for distribution
of allocation. 17
Here a distinction should, however, be recognised between what Dworkin
calls "the right to equal treatment" and "the right to treatment as an equal".
While the former right comprehends "as equal distribution of some opportunity
burden" the latter means not a right" to receive the same distribution of some
burden or benefit. but to be treated with the same respect and concern as
anyone else". The right to treatment as an equal, "according to Dworkin, "is
fundamental, and the right to equal treatment, derivative" .18 Thus the right to
equal treatment will require that each one should automatically have a right to
higher or technical education in the same manner as the right to vote. Therefore,
so long as the state guarantees equal concern or respect for all the claim of
equality is satisfied. 19 Thus if the state lays down a criterion for admission to
institutions of higher learning, it shows equal respect for all so long as the
criterion does not arbitrarily exclude or put at disadvantage anyone. But since
any criterion, including the so-called "merits", is likely to exclude or put at
disadvantage some people, it is a matter of policy to decide which criterion
shou ld be laid down that reasonably serves the overall gain to the society with
least disadvantage to any group. On this test a policy of affirmative action
would be consistent with the right to equality, if it assumes greater overalI gain
to the community, either in terms of result equality or cohesion, or integrity and
harmony in the society. This is not an argument based on preferences but an
argument that a more equal society is a better society, even if its citizens
prefer inequality. This "argument does not deny anyone's right to be treated as
an equal himself. 20 It supports a professional policy only if it "respects the

17. Supra Note 16, at 260.

18. Dworkin, Taking Rights Seriously, 227 (1977), cited in supra note 16.
19. Rawl 's two principles ofjustice are ' First: each person is to have an equal right to
the most extensive basic liberty compatible with a similar liberty for others. Second:
Social and economic equalities are to be arranged so that they are both (a) reasonably
expected to be to every one's advantages and (b) attached to positions and offices
open to all.
20. R. Dworkin. Taking Rights Seriously, 182 (1977) Cited in supra note 16.
96 IND/AN JOURNAL OF LAW AND JUSTICE

right of all members of the community to be treated as equals, but not

otherwise," Jn our society preferences to certain people or groups, such as
scheduled castes and tribes, as well as any other identified backward classes,
definitely assure a greater equality in the society. So long as they achieve that
end they cannot be said to be violating anyone's right to be treated as an
equal. 21
Equality postulates not merely legal equality but also real equality. The
equality ofopportunity has to he distinguished from the equality of results. The
various provisions of our constitution and particularly those of Arts. 38, 46,
335, 338 and 340 together with the preamble, show that the right to equality
enshrined in our constitution is not merely a formal right or a vacuous declaration.
It is a positive right, and the state is under an obligation to undertake measures
to make it real and effective. 22
The Indian constitutional policy of compensatory discrimination was
based upon the notion that certain social groups in lndin were inherently unequal
and were victims of societal discrimination and thus required satisfaction and
compensation. They believed that the meaning ofequality based upon individual
achievement was too hypocritical in a caste-ridden society where group
identification had historically been used for the purposes of discrimination and
separateness. To them there was nothing paradoxical in the idea that individual
claims of equality might sometimes clash with an otherwise desirable social
goal including a policy of making the community equal as a whole. 23
It is envisaged that government will not only refrain from discriminating
but will actively undertake to remove existing discriminatory practices in the
private sphere. But this attack on discrimination is only one facet of the
constitutional scheme to secure equality. The constitution also directs and
empowers the Government to undertake special measures for the advancement
of backward groups. 24
The constitution of India prohibits discrimination on caste, religion, sex
or language by the state in matters relating to education and employment. On
the other hand, it recognised as an interim measure protective Discrimination
in favour of specific groups on grounds of social justice. At present, the
reservations exists for the benefit of three groups namely, (a) Scheduled Caste

21. Ibid. Note 7. at 261.

22. Indra Sawhney v. Union oflndia,AIR 1993 S.C. 477 at 637.
23. Pannanand Singh some reflection on Indian experience with policy of Reservation
25, JTLJ (1983).
24. Marc Galanter. "Protective Discrimination" For Backward Classes in India.
 95

have been treated as untouchable and denied the right of association with
other members of the society. They have suffered all kinds of indignities and
disabilities not as individuals but as members of a group or caste and that
entitles them to special treatment as members of a group without violation to
the right to equality of the non-members. The individual's right to equality in
this situation is given due recognition in so far as the members of the group
can compete among themselves for the limited goods available for distribution
of al location.17
Here a distinction should, however, be recognised between what Dworkin
calls "the right to equal treatment" and "the right to treatment as an equal".
While the former right comprehends "as equal distribution of some opportunity
burden" the latter means not a right" to receive the same distribution of some
burden or benefit. but to be treated with the same respect and concern as
anyone else". The right to treatment as an equal, "according to Dworkin, "is
fundamental, and the right to equal treatment, derivative" . 18 Thus the right to
equal treatment will require that each one should automatically have a right to
higher or technical education in the same manner as the right to vote. Therefore,
so long as the state guarantees equal concern or respect for all the claim of
equal ity is satisfied. 19 Thus if the state lays down a criterion for admission to
institutions of higher learning, it shows equal respect for all so long as the
criterion does not arbitrarily exclude or put at disadvantage anyone. But since
any criterion, including the so-called "merits", is likely to exclude or put at
disadvantage some people, it is a matter of policy to decide which criterion
should be laid down that reasonably serves the overall gain to the society with
least disadvantage to any group. On this test a policy of affirmative action
wou ld be consistent with the right to equality, if it assumes greater overall gain
to the community, either in tenns of result equality or cohesion, or integrity and
harmony in the society. This is not an argument based on preferences but an
argument that a more equal society is a better society, even if its citizens
prefer inequality. This "argument does not deny anyone's right to be treated as
an equal himself. 20 It supports a professional policy only if it "respects the

17. Supra Note 16, at 260.

18. Dworkin, Taking Rights Seriously, 227 ( 1977), cited in supra note 16.
19. Rawl's two principles ofjustice are 'First: each person is to have an equal right to
the most extensive basic liberty compatible with a similar liberty for others. Second:
Social and economic equalities are to be arranged so that they are both (a) reasonably
expected to be to every one's advantages and (b) attached to positions and offices
open to all.
20. R. Dworkin. Taking Rights Seriously, 182 ( 1977) Cited in supra note 16.
96 INDIANJOURNALOF LAW AND JUSTICE

right of all members of the community to be treated as equals, but not

otherwise," In our society preferences to certain people or groups, such as
scheduled castes and tribes, as well as any other identified backward classes,
definitely assure a greater equality in the society. So long as they achieve that
end they cannot be said to be violating anyone's right to be treated as an
equal.21
Equality postulates not merely legal equality but also real equality. The
..
equality ofopportunity has to he distinguished from the equality of results. The
various provisions of our constitution and particularly those of Arts. 38, 46,
335, 338 and 340 together with the preamble, show that the right to equality
enshrined in our constitution is not merely a formal right or a vacuous declaration.
It is a positive right, and the state is under an obligation to undertake measures
to make it real and effective. 22
The Indian constitutional policy of compensatory discrimination was
based upon the notion that certain social groups in India were inherently unequal
and were victims of societal discrimination and thus required satisfaction and
compensation. They believed that the meaning ofequality based upon individual
achievement was too hypocritical in a caste-ridden society where group
identification had historically been used for the purposes of discrimination and
separateness. To them there was nothing paradoxical in the idea that individual
claims of equality might sometimes clash with an otherwise desirable social
goal including a policy of making the community equal as a whole. 23
lt is envisaged that government will not only refrain from discriminating
but will actively undertake to remove existing discriminatory practices in the
private sphere. But this attack on discrimination is only one facet of the
constitutional scheme to secure equality. The constitution also directs and
empowers the Government to undertake special measures for the advancement
of backward groups. 24
The constitution oflndia prohibits discrimination on caste, religion, sex
or language by the state in matters relating to education and employment. On
the other hand, it recognised as an interim measure protective Discrimination
in favour of specific groups on grounds of social justice. At present, the
reservations exists for the benefit of three groups namely, (a) Scheduled Caste

21. rbid. Note7. at26l.

22. Indra Sawhneyv. Union oflndia,AIR 1993 S.C. 477 at637.
23. Parmanand Singh some reflection on Indian experience with policy of Reservation
25,JILI(l983).
24. Marc Galanter. "Protective Discrimination" For Backward Classes in India.
 97

(b) Scheduled Tribes and (c) Other backward classes.25

The constitution establishes secular democracy. The animating principle
of any democracy is the equality of the people. But the idea that all people are
equal is profoundly speculative. It is well said that in order to treat some
persons equally, we must treat them di fferently. We have to recognise a fair
degree of discrimination in favour of minorities. But it is impossible to have an
... affirmative action for religious minorities in religious neutral way. In order to
get beyond religion, we can not ignore religion. 26 We must fi rst take account of
religion. It is exactly in the spirit of these considerations that the supreme
court in its advisory opinion in the Kerala Education Bill case27 recognised a
four degree of discrimination in favour of religious minorities. In this respect
the court seems to have acted on the same principle which is applied to socially'
and educationally backward classes, that is the principle of protective
discrimination. In MR. Balaji v. State ofMysore28 while examining the validity
of reservation to socially and educationally backward classes under Art. 15( 1).
Gajendra Gadkal, J., as he then was, pointed out that the reservation to socially
and educatio nally backward classes would serve the interests of the society
at large by promoting the advancement of the weaker elements in the society.
In the State of Kera/av. N.M Thomas29 Ray, C.J., while dealing with
the concept ofequality guaranteed by Articles 14, 15(1) and 16( 1) with reference
to the preferential treatment for backward classes observed that preferential
treatment for members of the backward c lasses with due regard to
administrative efficiency alone can mean equality ofopportunity for all citizens.
Equality of opportunity for unequal can only mean aggravation of inequality.
Equality of opportunity admits discrimination, with reason and prohibits
discrimination without reason. Discrimination with reasons means rational
classification for differential treatment having nexus to the constitutionally
permissible objects. Preferential representation for the backward classes in
services with due regard to administrative efficiency is permissible object and
backward classes are a rational classification recognized by our constitution.
Therefore, differential treatment in standards of selection are within the concept
of equality.
In Akhil Bharatiya Soshit Karmchari sangh (Railway) v. Union of

25. B. Shiva Ramayya. Protective Discrimination and Ethnic mobilization 22 JIU 480
(1980).
26. St. Stephen's College v. University of Delhi. ( 1992) l SCC 558. Shetty. ,J.
27. KeralaEducationBill,1976.
28. AIR 1963se.649.
29. AlR 1976SC490.
98 INDIAN JOURNAL OF LAW AND JUSTICE

India3°, Chinnappa Reddy, J ., While explaining the interrelationship ofArticles

16(1) and 16(4) said that Article 16(4) is not in the nature of an exception to
Article 16( 1). It is a facet of Article 16( 1) which fosters and furthers the idea
ofequality ofopportunify with special reference to underprivileged and deprived
classes of citizens. It is illustrative of what the state must do to wipe out the
~ istinction between egalite de droit and egal ite de faitle. It recognises that the
right to equality of opportunity includes the right of the under privileged to
conditions comparable to or compensatory of those enjoyed by the privileged.
Equality of opportunity must be such as to yield equality of results and not that
which simply enables people, socially and economically better placed to win
against the Jess fortunate, even when the competition is itself otherwise
inequitable.
It is now an accepted jurisprudence and practice that the concept of
equality before the law and the prohibitions of certain kinds of discrimination
do not require identical treatment. The equality means the relative equality,
namely the principle to treat equally what are equal and unequally .w hat are
unequal. To treat unequal differently according to their inequality is not only
permitted but required.31
In Indra Sawhney v. Union of India32 the Supreme Court held that
there is no doubt that no classification can validly be made only on the basis of
castejustas it cannot be made only on the basis of religion, race, sex, descent,
place of birth or any of them, the same being prohibited by Article 16(2). What
is, however, required to be done for the purposes of Article 16(9) is not
classification but identification. The identification is of the backward classes.
In Preeti Srivastava v. State of Andhra Pradesh3 3 the Supreme Court
held that Article 15(4) which was added by the constitution, First Amendment
of 1951, enables the state to make special provisions for the advancement,
inter-alia, of Scheduled Castes and Scheduled Tribes, notwithstanding Articles
15( 1) and 29(2). The wording of Article 15(4) is similar to that of Article
15(3). Article 15(3) was therefore exception. It enables special provisions
being made for women and children notwithstanding Article 15( 1) which
imposes the mandate of non-discrimination on the ground of (among other)
sex. This was envisioned as a method of protective discrimination. The same
protective discrimination was extended by Article 15(4) to (among others)
scheduled castes and Schedule Tribes. As a result of the combined operation

30. (1981) 1 SCC 246.

31 St. Stephen's College v. University ofDelhi ( 1992) I SCC 558.
32. AIR 1993 SC.477 at 648.
33. ArR 1999 SC. 2894.
 99

of these Articles, an array of programmes of compensatory or protective

discrimination have been pursued by the various states and the Union
government. Marc Galanter in his book, "Competing Equalities",34 has described
the constitutional schemes of compensatory discrimination policies entail
systematic departures from norms of equality (such as merit, even handiness,
.. and indifferences of ascriptive characteristics). These departures are justified
in several ways first, preferential treatment may be viewed as needed
assurance of personal fairness, a guarantee against the persistence of
discrimination in subtle and indirect forms . Second, such policies are justified
in terms of beneficial results that they will presumably promote: integration,
use of neglected talent, more equitable distribution, etc. with these two - the
anti discrimination theme and the general welfare theme - is entwined a notion
of historical restitution or reparation to offset the systematic and cumulative
deprivations suffered by lower castes in the past35 •
Since every such policy makes a departure from the equality norm,
though in a permissible manner, for the benefit of the backward classes it has
to be designed and worked in manner conducive to the ultimate building up of
an egalitarian non-discriminating society. That is. its final constitutional
j ustification. Therefore, programmes and policies of compensatory
discrimination under Article 15(4) have to be designed and pursued to achieve
this ultimate national interest. At the same time the programmes and policies
cannot be unreasonable or arbitrary, nor can they be executed in a manner
wh ich undermines other vital public interests or the general good of all. All
public policies, therefore, in this area have to be tested on the anvil of
reasonableness and ultimate public good. In the case of Article 16(4) the
constitution makers explicitly spelt out in Article 335 one such public good
which cannot be sacrificed , namely, the necessity of maintaining efficiency in
administration. Article 15(4) also must be used, and policies under it framed, in
a reasonable manner consistently with the ultimate public interests. 36

34. Marc Galanter, Quoted in AIR 1999 SC 2894 at 2904.

35. Ibid.
36. Ibid.