Positive (protective) discrimination (short note)

Protective discrimination: meaning and the case for it

Meaning. Protective discrimination (positive discrimination or affirmative action) means special protection and preferential treatment given to groups that history has disadvantaged, so that they can compete on fairer terms. In India it takes the form of reserved seats and quotas in education and employment for the Scheduled Castes and Tribes, which the Constitution allows because lack of access to good education and health care has been found combined with social discrimination on grounds of caste. The idea is wider than quotas: it runs from extra public spending on facilities meant for a deprived group to preference at the point of admission or appointment. A state government that pays for evening study centres in the Dalit hamlets of a district, and one that keeps a share of college seats for the same students, are both practising it.

The constitutional basis. IGNOU names four provisions as the backbone of the policy: Articles 15(4), 16(4), 46 and 340. Article 15 states a general rule and then carves out room for help. The rule has two parts. Clause (1) binds the State: it may not discriminate against any citizen only because of religion, race, caste, sex or place of birth. Clause (2) protects citizens, on the same grounds, from any disability or condition in entering shops, public restaurants, hotels and places of public entertainment, and in using wells, tanks, bathing ghats, roads and places of public resort that are kept up wholly or partly from State funds or dedicated to the general public. The room for help is best read by the group it serves:

• Backward classes and the Scheduled Castes and Scheduled Tribes. Clause (4), inserted by the First Amendment of 1951, lets the State make special provision for the advancement of socially and educationally backward classes and of the Scheduled Castes and Scheduled Tribes, and it overrides both the rest of Article 15 and Article 29(2). Clause (5) extends this to admission to educational institutions, provided it is done by law; private institutions are covered, minority institutions are not.
• Economically weaker sections outside those groups. Clause (6) allows special provision for them too, and any reservation of admission seats under it may not exceed ten per cent of the seats in each category.
• Women and children. Clause (3) permits special provision for them.

Outside Article 15, Article 16(4) permits the State to reserve appointments or posts for any backward class of citizens that, in its opinion, does not have adequate representation in the State's services. Article 46, a Directive Principle, directs the State to give particular care to advancing the education and economic position of the weaker sections, above all the Scheduled Castes and Tribes, and to shield them from social injustice and every kind of exploitation. Article 340 is the fourth provision on IGNOU's list. The same policy goes by several names: reservation, reverse or positive discrimination, affirmative action.

Arguments for. (1) On Rawls's reasoning, people choosing rules without knowing where they themselves will end up would protect themselves by favouring rules that give reasonable opportunities to the weaker sections. (2) Justice is not only identical treatment: it also asks for recognition of special needs and a just distribution of resources, and a society that handled the rich and the deprived in exactly the same way would simply stay unequal. (3) The policy serves equality of opportunity rather than departing from it, because identical rules applied to people in unequal positions keep the inequality alive. (4) It answers a debt from history. Communities that were shut out and kept apart for generations start any open contest with a handicap they did not create; to ask them to compete on the same footing at once would freeze the old hierarchy, so a society that wants to be egalitarian and just gives them extra protection and support. (5) It is meant to end: the help is designed as a time-bound measure that lasts only until the gap it addresses has closed.

Criticism. Critics call quotas reverse discrimination: they arbitrarily deny other sections their right to equal treatment, continue the practice of making distinctions by caste or colour, and may reinforce prejudice. Defenders reply that affirmative action is justified if it is a means of achieving real equality of opportunity and is reviewed and time-bound.