Does protective discrimination go against the principle of fairness?

Introduction

Protective discrimination gives special protection or preference to groups that have been disadvantaged by history. Because it treats people differently, it appears to clash with equal treatment, which is a central principle of fairness. The question is whether it really does.

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.

Protective discrimination and the principle of fairness

Why it may seem to violate fairness. One principle of fairness is that equals should be treated equally and that reward should follow merit and effort in proportion; pressing equal treatment alone can even pull against due reward for merit. Liberals add a historical worry: treating communities differently was the very mechanism of the caste system and of apartheid, so they distrust any departure from identical treatment. From these premises critics build the case against quotas. A reserved seat, they say, takes away from other citizens, without good reason, their claim to be treated alike; it is reverse discrimination, keeping alive the habit of sorting people by caste or colour that equality was meant to end; and by drawing those lines again it may harden caste and racial prejudice, when the goal should be to dissolve such divisions altogether.

Why it need not. Fairness has several principles, not one: besides equal treatment for equals and proportionate reward, it includes recognition of special needs, which extends instead of contradicting equal treatment, since people unequal in important respects may be treated differently. A contest is fair only if the contestants begin from comparable positions. Picture two candidates in the same state entrance test: one studied in a single-teacher school in a Bastar village with no laboratory and met the test's language for the first time in the examination hall, while the other studied in a well-equipped city school in that language from the start. One rulebook for both does not give them one chance. Treating a group differently is warranted when, without it, its members could not enjoy the same rights as everyone else: a factory that runs a safe night bus for its women workers is not favouring them but making it possible for them to take the same shifts as the men. So the real quarrel between critics and defenders is not over equality as the goal but over the means. Who should count as deprived, judged by income or by the social disadvantage that caste produces? And should the State keep seats for them at the point of entry, or build their skills with special facilities from childhood ?

Safeguards. Three tests keep the policy honest. First, judge each measure by its results: it is justified only if it actually leaves society more egalitarian and fairer to all. Second, watch for capture: a preference must not harden into a fresh hierarchy of dominance, or become a route by which already powerful groups win back old advantages under a new label. Third, no departure from identical treatment is to be taken for granted; each one has to be argued for and thought through. Governments must harmonise the principles of justice in this way.

Conclusion

Properly designed, time-bound and reviewed, protective discrimination is a way of achieving fairness over a longer period, not a breach of it; poorly designed (for example, benefiting those already well-off within the groups) it can lose its justification.