Protective Discrimination
Chapter Forty-Eight
Syllabus topic 3, "Right to equality : privatisation and its impact on affirmative action". MU set "Doctrine of Protective Discrimination Under Constitution of India" as a question in the 2022 bank.
Pages 218 to 221 of 304
In one line
Protective discrimination is the name for treating a disadvantaged group differently in order to make equality real, and its whole defence is that formal equality between unequals is not equality at all.
In the wording a student can write in an exam: protective discrimination, also called compensatory discrimination or affirmative action, describes the constitutional practice of making special provision in favour of groups historically subjected to disadvantage, so that the equality guaranteed by article 14 becomes substantive rather than merely formal. Its textual basis is the enabling clauses of articles 15 and 16 read with the directive principle in article 46, which requires the State to promote with special care the educational and economic interests of the weaker sections, and in particular of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. The doctrine rests on the proposition that the equal protection of the laws requires likes to be treated alike and unlikes differently, so that a measure favouring a disadvantaged class is an application of the equality guarantee and not a departure from it.
The justification
State it as an argument, in four steps, because that is what an examiner is testing.
One. Article 14 guarantees the equal protection of the laws, which requires that persons in like circumstances be treated alike.
Two. It follows that persons in unlike circumstances need not be treated alike, and that treating them alike may itself be unequal. A race in which one runner starts a hundred metres behind is not made fair by applying the same rules to both.
Three. Certain groups in India began the race behind, and did so because of a social order the Constitution itself condemns: untouchability in article 17, the prohibited grounds in articles 15 and 16, the directive in article 46.
Four. Measures that correct for that starting position therefore serve the equality guarantee rather than derogating from it. That is why Indra Sawhney holds that article 16(4) is not an exception to article 16(1) but an instance and an illustration of the classification inherent in it, and why the enabling clauses are best read as declaratory of what article 14 already permitted.
Protective, compensatory, affirmative: the words
Three terms circulate and they are not identical, which is worth a sentence.
Protective discrimination emphasises shielding a group from a disadvantage it still suffers.
Compensatory discrimination emphasises making good a historical wrong. It is the term the Court used in Janhit Abhiyan when it described the exclusion of the backward classes from the EWS quota as balancing the requirements of non-discrimination and compensatory discrimination.
Affirmative action is the American term, and it covers a wider range of measures, many of which fall short of reservation: outreach, training, relaxed cut-offs, scholarships.
Protective Discrimination
The Indian constitutional vocabulary is "special provision", which is wider than reservation and covers all of these. An answer that notices that article 15(4) permits "special provision for the advancement" rather than "reservation" is making a real point: reservation is one instrument among several, and it is the most contested one because it is the only one that operates by exclusion.
The forms it takes
Reservation of seats or posts, under articles 15(4), 15(5), 15(6), 16(4), 16(4A) and 16(6).
Relaxation of standards: lower qualifying marks, higher age limits, extra attempts. The proviso to article 335 expressly permits relaxation in qualifying marks or standards of evaluation for reservation in promotion.
Financial assistance: scholarships, fee concessions, hostels, maintenance grants, traceable to article 46.
Preferential treatment short of reservation: preference between equally qualified candidates, which Indra Sawhney said would not be impermissible in promotion even where reservation was not.
Reservation of seats in legislatures, under articles 330 to 334, which is a different thing again because it is not about opportunity but about representation.
Protective legislation, such as laws against untouchability under article 17 and laws for the protection of tribal land in Scheduled Areas under the Fifth Schedule.
The limits, and why they exist
Every limit the courts have imposed follows from the justification. That is the argument to make, because it shows the limits are not hostility to the doctrine but its logic.
The class must actually be disadvantaged. Otherwise there is no differentia, and on the twin test the classification has no nexus with its object.
The advanced within it must be excluded. [The Creamy Layer].
There must be inadequate representation. The object of article 16(4) is representation, so a class already represented adequately falls outside the clause.
The measure must not destroy the guarantee it applies. [The Ceiling on Reservation]. An application of article 16(1) cannot abolish article 16(1).
Efficiency must be considered. Article 335, which on Davinder Singh is a restatement of the need to consider the claims rather than a limitation.
It must not be arbitrary. On E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973, equality and arbitrariness are sworn enemies, and an arbitrary act is unequal and violates article 14. A special provision made without material, or extended to a group for reasons unconnected with disadvantage, is arbitrary however benevolent its label.
The criticisms, and the answers
An LL.M. answer must engage rather than defend.
It entrenches the categories it means to dissolve. By distributing benefits on the basis of caste, the State keeps caste politically salient and gives every group an interest in being classified as backward. The answer: the categories were not created by the Constitution and will not disappear by being ignored, and the creamy layer and the requirement of data are designed to make the classification temporary in application even if the category persists.
Protective Discrimination
It sacrifices merit. The answer: merit measured by a competitive examination reflects the opportunity a candidate has had as much as the ability he possesses, so a standard that ignores unequal preparation is not neutral. The Court has also said that reservation cannot be called anti-meritarian, while accepting that there are services and posts to which it may not be advisable to apply the rule.
It benefits the already advantaged within the class. The answer: that is precisely what the creamy layer exclusion is for, and Davinder Singh now permits sub-classification so that benefits can be directed to those within the list who have received least.
It has no end. This is the strongest objection, and the honest answer is that the Constitution provided an end only for reservation of seats in legislatures, in article 334, which has been extended repeatedly, and provided none for reservation in employment or education. Whether a remedy with no terminal date remains a remedy is a fair question and an answer should say so rather than resolve it.
A worked example
A State provides that in recruitment to the police, candidates from a listed community shall be given five additional marks, and that the physical standards required of them shall be lower. A general-category candidate challenges both.
Is a preference short of reservation permissible? Yes. "Special provision for the advancement" in article 15(4) and the power in article 16(4) are not confined to reservation, and Indra Sawhney said concessions and relaxations short of reservation are permissible even where reservation is not.
Do the same limits apply? Yes, because the justification is the same. The community must be disadvantaged on material; the measure must be connected to the disadvantage; and it must not be arbitrary.
Are the two measures on the same footing? Not necessarily, and this is the point the question is testing. The five additional marks address unequal preparation for a written test, which is a disadvantage the community plausibly suffers, so the nexus is straightforward. The lower physical standards address a physical requirement of the post itself. Unless the State can show that the physical disadvantage is itself a product of the deprivation the provision is meant to remedy, for example through nutrition, the nexus is missing, and the measure looks like a benefit unconnected to the reason for conferring it.
How to frame the answer. The power exists; the first measure survives the twin test; the second requires justification that may not be available; and neither is saved merely because the object was benevolent, because on Royappa an act without a relevant reason is arbitrary and therefore unequal.
Protective Discrimination
Quick revision
- Protective discrimination is treating a disadvantaged group differently so that equality becomes substantive rather than formal.
- Textual basis: the enabling clauses of articles 15 and 16, with article 46 as the directive principle behind them.
- The justification in four steps: equal protection requires like treated alike; unlikes need not be; some groups began behind for reasons the Constitution condemns; correcting for that serves the guarantee.
- Indra Sawhney: article 16(4) is an instance of 16(1), not an exception.
- "Special provision" is wider than reservation and includes relaxation, finance and preference.
- The limits all follow from the justification: real disadvantage, creamy layer, inadequate representation, no destruction of the guarantee, efficiency, and non-arbitrariness.
- The strongest criticism is that the remedy has no terminal date except in article 334.
Test yourself
1. Set out the justification for protective discrimination as a four-step argument.
2. Distinguish protective, compensatory and affirmative action, and say what the Indian constitutional term is.
3. Name five forms the doctrine takes, with the provision authorising each.
4. Show how each of the judicial limits on reservation follows from the justification rather than contradicting it.
5. State the four standard criticisms and the best answer to each.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.