Protective Discrimination

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.