Protective Discrimination

In one line

Treating unequals equally is itself unequal, so a provision that treats them differently in order to make them equal is not a departure from equality but an instance of it.

In the wording a student can write in an exam: protective discrimination, also called compensatory discrimination or affirmative action, means the differential treatment of a disadvantaged group in order to bring it to a position of real equality with others. Its constitutional justification lies in the doctrine of reasonable classification under article 14: equality means treating like with like, and treating unlike alike is itself a denial of equality. The Indian courts first treated article 16(4) as an exception to article 16(1), so that reservation was a permitted departure from equality. In State of Kerala v. N.M. Thomas the majority held that article 16(4) is not an exception but an emphatic way of stating how far equality of opportunity may be carried, and in Indra Sawhney the nine-judge Bench adopted that position, holding that clause (4) is an instance and illustration of the classification inherent in clause (1).

The argument from article 14

Article 14 does not require identical treatment. It requires equality before the law and the equal protection of the laws, and the settled doctrine is that it permits classification provided the classification rests on an intelligible differentia and the differentia has a rational nexus with the object sought to be achieved.

So a classification of a disadvantaged group is not automatically suspect. The question is whether the group is intelligibly identified and whether treating it differently serves the constitutional object.

And the object is written down. Article 46 directs the State to promote with special care the educational and economic interests of the weaker sections and in particular of the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. A classification serving that object serves a constitutional purpose.

The proposition in one line, which is worth memorising. Equality among unequals is inequality, and to treat unequals equally is to perpetuate the inequality.

The exception theory, and its abandonment

The first position. Article 16(1) states the rule of equality of opportunity; article 16(4) permits a reservation; therefore article 16(4) is an exception, and being an exception it must be construed narrowly and kept within limits.

Two consequences followed from it, and they are why the theory mattered. An exception is strictly construed, so the scope of reservation is read down. And a reservation outside article 16(4) is impossible, since the only permission is the exception itself.

Facts. State of Kerala v. N.M. Thomas, AIR 1976 SC 490, (1976) 2 SCC 310, decided 19 September 1975 by a Bench of seven. Rule 13AA of the Kerala State and Subordinate Services Rules 1958 gave members of the Scheduled Castes and Scheduled Tribes a temporary exemption from passing the departmental tests required for promotion. The High Court struck it down and the State appealed.