What do you understand by Compensatory Discrimination? Is it against equality? How successful has it been in India?
Compensatory Discrimination is a term coined for the policy or programs that give preference to a group or groups of people with a stated goal of countering and compensating the past or ongoing atrocities, excesses, injustice, or discrimination of any sort against them. This measure has been adopted for uplifting the weaker sections of society by several countries including India, the USA, Belgium, Brazil, and even China. In the USA, it is called Affirmative Action. A direct application of compensatory discrimination can be seen in the reservation of seats in educational institutions, the reservation of vacancies in public service, and the preference for such groups in government contracts.
Purpose
For a society as a whole to grow it is necessary that every section of the society take part in the development of the society. At the same time, every section should also receive the benefits of the growth. A society can never grow if several sections of society are repressed or exploited. Every section of society should get a sense of hope that they have a better future ahead. Further, it is also true that historically several sections of our society have been discriminated against and there exists a prejudice against them in the socially uplifted sections. To bring such downtrodden sections of the society to the same or comparable level, the society as a whole must take special efforts and measures, which is exactly what the purpose of compensatory discrimination is.
Another important objective of compensatory discrimination is the reduction in social discrimination existing in the minds of people to the extent that the elite of the society reflects every section of the society comparably thereby bringing about the end of compensatory discrimination itself.
Target Groups
As noted before, Compensatory Discrimination has been adopted in several countries in the world. In the US and South Africa, the target groups are blacks and other ethnic minorities, while in India the target groups are based on caste and sex.
In India, Sudras have been historically oppressed. The position of women also has only been marginally better than Sudras. Oppression of Sudras and women even had religious sanctions as is evidenced in the harsh treatment meted out to them in Manu Smriti. Therefore, it is for these people that Compensatory Discrimination is employed. Another important but less talked about group is senior citizens (old people).
Logic Behind Compensatory Discrimination
It is often said that meritocracy alone should be the factor in determining the social progress of a country. However, there are several problems with meritocracy as mentioned below:
- It does not take into account the social capital already accumulated by the classes that have historically been socially powerful. How can a person whose family has been suppressed for thousands of years compete with a person who always had the best of the resources available to his disposal?
- The measurement of merit itself may be biased because of past prejudices.
- Acquisition of merits such as good education and past experience itself is difficult for such sections because of discriminatory practices of the past.
- People tend to hire people who are from similar backgrounds, which puts the weaker classes at a disadvantage.
The only solution to this problem is to help them to reach a stage where they can compete with everybody on an equal footing.
Compensatory Discrimination and Equality
Before we talk about equality with respect to Comp. Desc, we must first understand the concept of equality. If two people are found guilty of murder, and one of them is a child. Should the law treat them equally and award the same punishment? While working at a construction site, should women be required to lift a load of the same weight as men? The answer for both is a resounding no. A Child is not mentally capable of distinguishing between right and wrong. A woman is physically not strong enough to lift heavy loads. Thus, it is clear that merely a blind application of the law is not right. Same laws cannot be applied in unequal circumstances.
This is the idea adopted by the Indian Constitution about equality. Like, should be treated alike. This principle was adopted by the US Supreme Court in the case of Lindsley vs Natural Carbonic Gas Co in 1911 as the meaning of Equal Protection of Laws.
Extending the same principle, it is not hard to understand that certain classes of society are measurably weaker than others in terms of social upliftment. Subjecting them to the same standards of meritocracy would amount to injustice. Therefore, I believe that compensatory discrimination is not against equality. It is, in fact, just another facet of equality.
In the case of N M Thomas vs the State of Kerala, SC has held that art 16(4), which is a prime source of compensatory discrimination, is not an exception to art 16(1) but only an instance of classification. It further held that reservation can be done even without art 16(4) and under art 14 which permits reasonable classification. In the case of Indra Sawhney vs Union of India, the Supreme Court has upheld the view given in the N M Thomas case. Thus, such provisions do not, in principle, go against equality.
Implementation in India
Indian Constitution understands the need for special measures for the weaker sections of the society and contains several provisions for the same. Some important ones are:
Art 15 (3): It allows the state to make special provisions for women and children. Because of this article, a special commission for women has been established. Several women-friendly laws such as the Prevention of Domestic Violence Against Women Act 2006 have been passed.
Art 15 (4): It allows the state to make special provisions for backward classes in education and other fields. A Commission each for Scheduled Castes and Scheduled Tribes has been established. These commissions report directly to the president.
Art 16 (4): It allows the state to reserve vacancies in govt. employment for backward classes.
Art 17: Abolishes untouchability.
Art 19(5): This allows the state to impose reasonable restrictions on freedom of movement and occupation to protect the interest of scheduled tribes.
Under Directive Principles of State Policy, articles 40, 42, and 45, strive to give several benefits to weaker sections including reservation in panchayats for women and backward classes, free pregnancy care, and delivery, and prevention of exploitation of children. Art 46 enjoins the state to take special care in promoting the social and educational interests of weaker sections of the society, especially SCs and STs and to protect them from injustice. No provision made under art 46 can be challenged on the grounds that it violates rights given in Part III. Art 44 strives to implement the Uniform Civil Code. SC, in the cases of Shah Bano vs Mohd Ahmed Khan and Sarla Mudgal vs Union of India, has already directed the states to try to implement Art 44 to ensure equal treatment of women under all religions.
Art 164: Provision of a Special minister of state for tribal welfare for the states of MP, Bihar, and Orissa.
Art 275: Allows grants in aid to states for promoting tribal welfare.
Art 330/332: Allows reservation of seats for SC and ST in Lok Sabha and state assemblies.
Art 335: It has been amended to allow relaxation of qualifying marks for SCs and STs in examinations for educational institutes or promotion in jobs.
Art 338, 338 A, and 339: Provides for the establishment of the National Commission of Scheduled Castes and Scheduled Tribes. Under 339, the Center can direct the states to implement and execute policies for the betterment of Scheduled Tribes.
Art 340: Allows the president to appoint a commission to investigate the conditions of socially and educationally backward classes and table the report in parliament.
Success In India
The policies implemented under the doctrine of compensatory description have achieved a lot of success. We can see that people of all castes travel in the same bus or train without any mention of caste. Upon receiving opportunities people of backward casts have become respected scientists, engineers, and doctors. It is due to the favorable treatment of these classes that a big chunk of these classes is now financially independent. In the past, there was absolutely no hope for them to be able to do anything other than menial tasks such as cleaning latrines.
Women have also achieved a lot because of compensatory discrimination. Policies such as free education for girl children, and reservations in educational institutions have ensured that 50% of the population of our country, which was dormant or was only involved in housework, can now actively take part in building a prosperous future for our country.
Policies started under this policy have increased awareness in backward classes about their rights. Most importantly, when a person from a community moves up and reaches a position of power and financial wellness, it gives hope to other members of the community that they too can achieve many things.
Critical Analysis
There are several drawbacks to this as well. For example, instead of removing the basis of discrimination (such as caste or color), Compensatory Discrimination highlights it. It is also the cause of dissatisfaction among the poor of the forward classes. Some experts believe that there are not enough economic benefits of this approach to justify the continuance of division in society. Some others believe that it has a basis only in politics.
A key measure of its success would be the competition in filling up the reserved posts. We can see that even after so many years of reservation, posts are left vacant for the want of qualified people. In a country with a billion people, it is extremely surprising to not find enough qualified people. This proves that reservation has not really helped uplift the backward classes. Thus, it can be said that while the reservation is necessary, it alone is not the solution. It must be coupled with other programs that provide primary and secondary education, food, clothing, and financial help to backward sections, thereby making them capable of taking advantage of reservations.
Keywords: Compensatory Discrimination, Compensatory Discrimination in India, Compensatory Discrimination under Indian Constitution, Compensatory Discrimination and its Legal Validity.Click here to read the Bare Act of the Indian Constitution
