Real equality cannot be achieved among people as there are natural inequalities one is born with such as great innate athletic talent, beauty, etc. Hence some discrimination is legitimate even sometimes mandatory. For instance, a child born in a privileged family would definitely have certain advantages over a child born less privileged. Ashwini Deshpande (Quest for Equality: Affirmative Action in India) writes about broad four factors which justify caste-based affirmative actions in the Indian context. These factors are material disparities, labor market discrimination like wage and job discrimination, especially in urban formal sector labor markets, stigmatized ethnic identity, and historical origins of untouchability which are perpetuated by the contemporary socio-economic system. So with these precursors in mind, we would be comparing the conception of equality in India with the USA, by referring to Nicole Lillibridge, “The Promise of Equality: A Comparative Analysis of the Constitutional Guarantees of Equality in India and the United States.”
Individual Rights vs. Collective Rights
India’s long history of social inequalities entrenched in the complex social hierarchy has led to the concept of equality as a collective phenomenon whereas in the USA, the historical religious denomination has perpetuated a view which focuses on equality of individuals rather than seeing it as a collective form. In the Indian context, equality is mainly focused on inequalities due to caste whereas, in the US, it is more racial inequality. However other elements such as gender inequality, religious inequality, etc. definitely affect the main form of inequalities. National identification with either individualistic view or collective view and resultant conception of equality can be found in both countries’ constitutions. In fact, these constitutional imperatives subsequently shaped the national ideology on equality. India’s social hierarchy and historical oppression of certain groups led to the inclusion of compensatory discrimination in the constitution. Whereas American’s denial of class discrimination or rather belief that their society is classless has led to follow the individualistic approach in their constitutional formation. A close examination of the 14th amendment of the US constitution can reveal that the color blind assumption that the USA is a country of equals has led to slow reforms i.e. by disregarding prima facie societal inequalities and just focusing on formal anti-discrimination principles. Hence, it discards the presence of real inequalities and focuses rather on the natural distribution of innate talents, intellects of each individual. Therefore, equality is seen as synonymous with opportunity i.e. concerned with an individual’s ability to succeed by overlooking societal inequalities.
Under colonial influence, the Indian caste system became one of the main hierarchical social systems of the organization superseding the complex nature of social relationships of identity and community of the Indian society. This led to Indians frequently identifying themselves as members of a caste group rather than individuals. Nicole Lilibridge talks about two kinds of change to bring in the Indian society that can minimize the existing inequalities that are first, positional mobility (focuses on individual’s ability to surpass caste barriers) and second, structural mobility (which subverts heredity based organization of society).
The Constitution of India has an orientation towards a group approach to equality. For instance- preamble talks about securing justice, liberty, equality and to promote fraternity. Constitution also refers to “class” at several places such as “backward classes (socially and educationally backward) or Article 38 states “the state shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” Article 46 also falls under this rubric in demanding protection of the “weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”, furthered by Article 340, which provides appointment of a presidential commission to investigate the conditions of the backward classes to make policy recommendations. Article 335 gives additional consideration to Scheduled Castes by reserving a certain proportion of government posts for them.
In E.P Royappa v. State of Tamil Nadu (1973), Justice Bhagwati laid a “new dimension” to Article 14 i.e. equality cannot be “cribbed, cabined and confined within traditional and doctrinaire limits. The court held that the doctrine of classification is not just paraphrasing of Article 14, it is rather a judicial formula to check whether the legislative or executive action is arbitrary and therefore denies equality. The Supreme Court in State of Kerala v. N.M. Thomas (1976) held that Articles 14, 15, and 16 were equal rights and sought to achieve real equality. It was held that Article 15 (4), and 16 (4) which allowed for special provisions and reservations for the marginalized were not exceptions to 15 (1) and 16 (1), rather it flowed from them to bring to reality the goal of equality. Therefore we can say, our constitution aims to provide formal as well as substantive equality. This necessitates the State to take actions for removing inequality. Equality before the law is basically minimizing or eliminating inequalities in terms of income, status, and access to the facilities, opportunities, securing adequate means of livelihood, and promoting educational and economic interests of weaker sections of society. The concept of Equality postulates not merely legal equality but also real equality and hence reservations and other special provisions given by the state for the protection of rights are meant to address the social inequality that already exists.
The original colonists saw America as a nation with greater freedom of religion which underwent radical changes before the foundation of the republic, leading to a very different constitutional regime. It has followed an ideology of individualism from the very beginning of constitution formation. The individualistic approach has pervaded issues of national interest. The paramount belief in individualism emerged as a defining marker in which Americans perceive themselves as a nation. It grew out of the belief that the individual is the basic unit of reason. In fact, the Bill of Rights almost exclusively focuses on individual liberty and individual rights.
Americans believe that equality is a foundational principle of the United States, however, this idea was not in the original Constitution. It was first added with the Civil War Amendments which led to the addition of the 14th Amendment. The language in the 14th amendment provides the most individualist notion of equality i.e. “the law shall not treat each individual differently.” In Plessy v. Ferguson, the Court upheld the separate-but-equal standard legitimizing segregation. However, Justice Harlan dissent and held that racial discrimination was not a justifiable basis for the classification of people and proposed that all classifications based on race are unconstitutional. The civil rights reforms in the 1960s highlighted the shift in American history where the paradigmatic goal of individualism gave way up to some extent to the ideals of greater collective equality. The Court’s subsequent retreat in the Brown case from the principles of racial equality finds the clearest expression in its decisions addressing affirmative action. Americans now view them as failing despite all of the perceived benefits they receive from affirmative action. Affirmative action programs provoke such resentment precisely because they are only justifiable if one recognizes that inequality exists, which people are reluctant to acknowledge.
Both the constitutions provide similar individual rights, boasts of constitutional courts with great powers of judicial review, and both share the common tradition of the British common law. However, ideological views toward individual rights and substantive equality have resulted in very different constitutional regimes in both countries. The Indian approach toward affirmative action focused on eliminating social hierarchy, perpetuating the inferior socio-economic status. It recognizes the value of achieving substantive equality while simultaneously protecting individual rights. Whereas American’s approach is entirely individualist towards equality of opportunity. It denies that there exist different opportunities to those born within an existing social hierarchy, and justifies existing inequalities by referencing the formal equality of every individual under the law.
A legal system that focuses on eliminating unequal effects among society’s groups ensures the ability of individuals to achieve equal status. Collectivist programs aimed at improving equality are based on the assumption that the law will act as a medium to achieve social change. On the other hand, the formalist equality-of-opportunity approach is based on the assumption that the legal system has limited ability to influence social change. The Indian approach in taking affirmative steps to elevate groups’ societal standings provides an ability to measure and achieve some progress rather than waiting for eliminating racism or for each individual of a marginalized group to pull oneself out of poverty. Apart from caste as one factor, Indian affirmative action also took care of another form of discrimination such as against women, minorities, etc. by making special provisions for them.
Libertatem.in is now on Telegram. Follow us for regular legal updates and judgment from courts. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter. You can subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.