By Rakesh Sinha
‘Justice is a name to which every knee will bow. Equality is a word which many fear and detest.’
The Indian Constitution is a democratic treatise on the notion of equality. It enshrines the cherished democratic values of equality, justice and freedom. Its basic thrust is to do away with any kind of discrimination prevalent in the society because it believes that freedom can only be realized in a non-discriminatory social setting.
The strength of the Indian Constitution lies in the fact that it reconciles the conflict between individual & group rights. Both these rights are equally upheld in the Fundamental Rights of the Constitution. One has individual rights in the form of individual freedom along with the group rights for religious minorities as well as several other rights for SCs/STs and OBCs.
Thus, the Constitution judiciously combines individual’s worth with the worth of the community to which he/she belongs. The contemporary liberal philosophy is still grappling with the groups and cultural thoughts and is in the process of theorization for application in the multi-cultural and multi-racial society of the West. It is the ingenuity of the framers of the Indian Constitution that they resolved this problem several decades ago with the attainment of India’s independence.
The Fundamental Rights and the Directive Principles of State Policy (DPSP) of the Indian Constitution together, decisively empower the citizens to enjoy equal opportunities. Article 16(1) and 16(2) of the Constitution guarantees equality of opportunities to all its citizens irrespective of their caste, race, gender and religion. Moreover, the Constitution gives philosophical direction to the State to achieve egalitarianism through active intervention in the socio-economic sector.
The Constitution not only makes provisions for equal treatment of all irrespective of caste, creed, religion, language and region, but also ensures their implementations. To achieve its objective the Constitution makes the welfare of the citizens, one of its core values. Moreover, in order to realize its values, the Constitution provides space for affirmative action which can act as a level playing field for all its citizens. The Constitutional design and subsequent judicial pronouncements on SCs, STs and OBCs are cases in point which seek to provide equal opportunities to all and help in realizing the egalitarian social order.
Though ‘equal opportunity’ is a term which has varied interpretations, there is a consensus that absence of discrimination both at policy and implementation levels is a precondition to accomplish the goal of equal opportunity for all citizens. Some argue that this absence of discrimination should account for ‘both direct and indirect discrimination’.
The Indian Constitution, while exhibiting zero tolerance against direct discrimination, has also taken into consideration the factors which can lead to indirect discrimination.
However, indirect discrimination can not be absolutely abolished. Casteism, nepotism, corruption and regionalism are some of the factors which sometimes influence the decision-making process. But these aberrations in the administration and governance can not be described as institutional discriminations. They are confined to individual cases and cannot be said to be an organized menace.
It is of course a duty of the State to check such immoral and undemocratic behaviour of its agencies. In democracy, they can be checked by using various modes, which include constitutional as well as extra constitutional tools, like pro-active judiciary, People’s Interest Litigation(PIL), free press, and the Right to Information Act etc.
The Indian Constitution is committed to achieve an egalitarian society and empowers the government to explore diverse strategies to minimize inequalities. The most popular of them to emerge has been the practice of positive discrimination. Positive discrimination may be defined as preferential treatment of socially and economically disadvantaged groups in education and employment.
The philosophy behind the positive discrimination was to overcome the inequality of vulnerable sections of the society at the initial stage. The basic thrust was to remove the hurdles in the way of their accessibility to education, employment and health. Such provisions were discussed in the Constituent Assembly and the Scheduled Castes, Scheduled Tribes and certain backward castes have been judiciously brought under the orbit of the positive discrimination.
It is evident that the Indian society and State rejected outright the theory and practice of ‘Melting Pot’. The concept of Equal Opportunity Commission not only negates this historical backdrop but also raises a big question mark on secular governance and society.
Human Rights and equality are two sides of the same coin. To discriminate on grounds of caste, gender or place of origin is a violation of human rights. Therefore the basic question which arises is that when there is a global trend towards integrated Commission why this wastage of resources on a separate Equal Opportunity Commission.
(Rakesh Sinha is an associate professor in Faculty of Arts (Political Science) at Delhi University and also associated with India Policy Foundation. The views expressed here are his own.)
First Published: Thursday, October 08, 2009, 13:03