Introduction
The right to equality is the most important pillars of
Constitutionalism. It is this right from which all liberties guaranteed to the
people flow. Even apart from the liberties, the right to equality dictates
almost every aspect of Constitutionalism. For instance, universal adult
suffrage, which allows every adult person, regardless of age, gender, race,
religion, etc. to cast an equal vote and elect their representatives, flows
from the right to equality. Thus, popular sovereignty and democracy rest on the
right to equality. Similarly, the fact that everyone is equal in the eyes of
the law and everyone is subject to the law in the same manner is what makes the
law truly supreme, thus being a founding principle of the Rule of Law. Thus, it
is absolutely fair to say that there can be no Constitutionalism without the
Right to Equality.
Right to Equality in USA
The ideology of the Right to Equality has been enshrined in
USA’s Declaration of Independence where it has been declared that all people
are created equal. The very foundation of the country holds the Right to
Equality at the highest pedestal. However, the Declaration of Independence does
not hold any legal value. The concept of the right to equality did not exist in
the American Constitution till the 14th Amendment inserted almost 80
years after the Constitution was put into effect.
The Equal Protection Clause of the 14th Amendment
guarantees that every person will be treated and protected equally by the laws
of the land. A similar provision also exists in the Civil Rights Act of 1866,
which also guarantees this same protection to the people. This clause was
inserted with the main objective of providing equal treatment to those who were
formerly treated as slaves in the country.
Affirmative Action in the USA
The wording of the Equal Protection Clause in the 14th
amendment places a constrain on the Government by saying that equal protection
shall not be denied to any person. The Constitution itself does not provide any
positive mandate for the Government to take affirmative action, like
reservations, etc., in pursuance of the right to equality. Despite this, an
effort has been made by the US Government to take certain Affirmative Actions
to correct the effects of historical discrimination against specific groups of
people.
Affirmative Action refers to a set of policies, laws and
practices that are brough about with the objective of ending certain forms of
discrimination and correct the negative effects it has had in the society.
Affirmative Action largely targets racial discrimination and the discrimination
based on gender in the US. The term ‘Affirmative Action’ cam about in 1961,
when the then President of the US, J.F. Kennedy used this term for the first
time in an executive order directing government contractors to take affirmative
action to ensure that employment is not based on race, colour, creed, gender,
etc.
Judiciary’s Role in the Development of the Right to Equality in USA
Right to Equality
The first controversial case on the right to equality, is
the case of Plessy v. Ferguson, 163 U.S. 597 (1896). In this
case, the state of Louisiana brought out the Separate Car Act, delineating
separate railway coaches for black and white people. The US Supreme Court, by a
majority opinion, held that this law was valid, as there was barely any quality
difference in the coaches. The court differentiated between social structure
and civil rights, stating that the Constitution only protected civil rights and
not social structure.
The case of Plessy laid down the foundation for the
‘separate-but-equal’ treatment, according to which racial segregation would be
permitted on the ground that there was no difference in the services provided
to any person belonging to any particular group. This was the law of the land
for the next few decades, until the case of Brown v. Board of Education
of Topeka, 347 U.S. 483 (1954). The separate-but-equal doctrine was
rejected in this case, which involved racial segregation in a public school.
Even though it was contended that despite racial segregation, the same
facilities were provided to all students, it was held that racial
discrimination is inherently violative of the Constitution, and cannot be
allowed at all as it would defeat the very purpose of equality under the Equal
Protection Clause.
Affirmative Action
A Quota refers to the reservation of a certain number of seats
or positions for people belonging to a specific group, race, caste, etc. The
applicability of such a system was discussed in the case of Regents of
the University of California v. Bakke, 438 U.S. 265 (1978), where the
reservation of a certain number of seats for minority students was challenged.
The court held that while it is legal to take into account a person’s race,
colour, etc. for the admissions process with the objective of achieving
diversity and equality, it is unconstitutional to set a quota for the same, as
every student has the equal right to be judged on their merits, and cannot face
rejection merely on the basis of a quota system. This principle was upheld in
the case of Grutter v. Bollinger, 539 U.S. 306 (2003), where an
admissions process favouring the minorities was constitutionally valid since it
took into account other factors for the evaluation of the student as well.
Another important case on the Equal Protection Clause and
Affirmative Action in the US, which does not deal which admission into
educational institutes, is the case of Griggs v. Duke Power Co., 401 U.S.
424 (1971), which dealt with discrimination at a workplace. The basic
facts involved were that for the promotion at the respondent power company, a
high school diploma was required. If a candidate did not have a diploma, they
would have to give certain mental aptitude tests. The problem was that the
number of people of colour with diplomas was substantially lesser than the
whites, and the likelihood of passing the mental aptitude tests was also very
low for the people of colour. The court held this action to be discriminative
and violative of the Equal Protection Clause, because the prescribed tests were
not “reasonably related” to the job. Thus, a test or reasonable classification
was laid down in this case.
Right to Equality in India
The Right to Equality is enshrined within the Indian
Constitution in a much more comprehensive manner than the US Constitution. Article
14 of the Constitution of India sets out the basic principle of equality, in
stating that every person is equal in the eyes of the law and deserves equal
protection under the law and equal treatment before the law. This right has
been interpreted in the widest manner possible, targeting discriminatory
and arbitrary actions by the State, no matter where and how they arise. The
framers of the Indian Constitution were also mindful of the immense social and
economic inequalities in the country, embedded deep into its culture and
religions, and often even sanctioned by the State run under the British Raj. In
this background, equal treatment before the law would mean equal treatment of
equals only, giving rise to the doctrine of reasonable classification and
intelligible differentia, which will be discussed later.
Apart from Article 14, the Constitution also contains
provisions targeting specific forms of discrimination in specific situations.
Article 15 prevents the State from discriminating against any citizen on the
grounds of race, religion, caste, gender, etc. Article 16 further ensures
non-discrimination on these grounds in matters of public employment by the
State. However, these provisions do not prohibit the State from enacting
special laws for women, Scheduled Castes (SC) and Scheduled Tribes (ST)
and Other Backward Classes (OBC). These provisions perfectly enshrine
the principle that people having an unequal standing in society cannot be
treated as equal to those having a higher standing in the society.
Lastly, Article 17 prohibits the practice of untouchability
in India. Untouchability was a practice in which the people belonging to what
was considered to be the lowest caste were seen as untouchable.
Affirmative Action in India
Article 14 of the Indian Constitution, similar to the US
Constitution, contains a negative covenant stating that the no person can be
denied equality before the law. However, the subsequent provisions, under
Articles 15 to 17 specifically deal with the non-discrimination of certain
groups of people in specific situation. In this regard, the Indian Government
is also mandated to take affirmative action to ensure the protection and equal
treatment of the underprivileged classes of people, which include SCs, STs and
OBCs. This is because India’s socio-economic strata has historically
discriminated against the lesser privileged classes in a manner that the
ill-effects of such discrimination are felt even today, as they have not
allowed these people to grow socially and economically, despite the abolition
of the caste system and untouchability.
In addition to this, the President of India in exercising
his executive powers can determine those castes which are to be treated as SCs
under Article 341 of the Constitution of India. Further, Article 342
gives the President similar powers for the determination of STs. In 1979, the Mandal
Commission was constituted to identify the Other Backward Classes or OBCs
in India. The commission found that approximately 54% of India’s population
belonged to these OBCs and suggested quotas for reservation in public sector
jobs, educational institutions, etc.
This brings to the fore the concept of Quotas, which, as
seen above, were totally outlawed in the US. The quota system, as it is
popularly known in India, is a system of reserving a certain number of public
sector jobs, the number of seats in an educational institution, etc. for people
belonging to a certain group or class. Critics of the quota system feel that it
reinforces the caste system, rather than bringing an end to it, and even puts
more meritorious people at a disadvantage. On the other hand, proponents of
this system say that the people of the privileged classes benefit from
belonging to a higher social structure, which automatically leads to better
opportunities.
This Indian concept of affirmative action, has been a topic
of debate since the time the Constitution of India was introduced, and such a
question has been brough before the Indian courts on multiple occasions, which
have been discussed in the following section.
Judiciary’s Role in the Development of the Right to Equality in India
The 2 main principles that go hand in hand with the right to
equality in India are ‘reasonable classification’ and ‘intelligible
differentia’. One of the first cases dealing with this principle is the case of
R.K. Dalmia v. Tendolkar, AIR 1958 SC 538, where the principle
that un-equals cannot be treated at par with equals was propounded. It was laid
down by the Indian Supreme Court that even though Article 14 provides equal
protection before the law and prohibits class legislation, it is possible to
have a class legislation based on reasonable classification and intelligible
differentia. Intelligible differentia means that certain objects are clearly
distinguishable from others. Further reasonable classification means that such
differentiation must have a rational nexus with the ends to be achieved by the
action of the State. Such differentiation cannot be based on those
considerations which promote unequal treatment of others and this has been the
law of the land since.
As far as affirmative action goes, the quota system, as
stated above, is prevalent in India. However, certain limits have been imposed
on the exercise of this system, in order to ensure that this right is used only
for the purpose of achieving equality. The case of M.R. Balaji v. State
of Mysore, [1963] Supp 1 SCR 439, is a landmark case where an order by
the State Government stating that there will be 75% reservation for all castes
except Brahmins was challenged. The court held that such a classification was
not reasonable, as a class must be both, socially and economically backward to
attract reservation under Article 15(4).
A similar provision was applied for employment matters under
Article 16 in the famous case of Indra Sawhney v. Union of India, AIR
1993 SC 477. It was held in this case that caste cannot be the sole
criterion in determining whether a class of persons is backward or not for the
purpose of providing reservation. Social and economic backwardness are both
required for a class to be identified as backward. This has also led to the
formulation of the ‘creamy layer’ principle, where those persons though
belonging to OBCs, but earning more than INR 8 lakhs cannot avail the benefits
of reservation. Lastly, in Nagaraj v. Union of India, the extent
of reservation was prescribed based on the principles laid down in the cases
cited hereinabove. A ceiling limit of 50% reservation has been laid down and
the court also held that the state cannot breach this limit or violate the
creamy layer principle, even if it has compelling reasons to do so. Thus, the
application of ‘Affirmative Action’ in India and USA is very different,
especially when it comes to the question of quotas.
Author’s Opinion
It is clear that India and USA have taken very different
stances when it comes to the question of affirmative action and reservation. While
USA is against the prescription of quotas, the same is mandated under the
Constitution of India. This can be attributed to the vastly different
socio-economic circumstances in both countries. While the US had to deal with
mainly racial discrimination, India had to deal with the evil of the Caste
system which had plagued India’s culture for centuries. The framers of the
Indian Constitution were aware that this was a near impossible mountain to
climb, which is why the concept of reservation was embedded into the
Constitution.
While the concept of reservation exists within the Indian
Constitution, the objective behind it must also be understood. Reservation and
Affirmative Action exist in order to correct the effects of discrimination of
the past and bring equality within the society. In this background, it is in
the author’s humble opinion that the concept of reservation cannot be set in
stone, and must adapt to the needs of the society. As the people from a
backward class are educated and get jobs, their standing in society is likely
to be uplifted. This is why the creamy layer principle was introduced.
However, such a fallacy has been handled better in the US
than in India. In the US, the courts have made it clear that actions in favour
of a minority solely because of their position in society cannot be
Constitutional. While this may be a factor, it cannot be a sole factor. In this
manner, many meritorious candidates do not miss out on opportunities. On the
other hand, in India, because of the existence of the reservation system, many
people get opportunities without the consideration of their merits and other
factors. This, in the author’s opinion is not the true essence of equality.
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