One of the most contentious issues in India’s constitutional law and government policy has been the one relating to caste-based reservations in education and employment—a powerful example of “compensatory discrimination" and “affirmative action" on behalf of identified “backward classes" in the country. For many people (predictably belonging to the “upper castes"’ and “upper classes" of the social hierarchy), affirmative action is founded in a flawed and contradictory notion of equality. Indeed, the Constitution has been held guilty of this. What is the precise nature of the complaint?

Let us look at some of the salient equality clauses in the Constitution. Article 15 relates to “Prohibition of discrimination...", and Article 15(1) states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." Article 15(4) mandates that “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

Article 29 relates to “Protection of interests of minorities". Article 29(2) stipulates that “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them." Article 16 is concerned with “Equality of opportunity in matters of public employment." Article 16(2) states that “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against, in respect of any employment or office under the State." Article 16(4), however, requires that “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."

For many, Article 15(4) is incompatible with Articles 15(1) and 29(2), just as Article 16(4) is incompatible with the spirit of Articles 15(1), 16(2) and 29(2). How so? Well, and this is how the argument might run, in order to discriminate in favour of certain groups (as Articles 15(4) and 16(4) allow for), one must discriminate against certain other groups (which is proscribed by Articles 15(1), 29(2) and 16(2)). The problem, in this reckoning, would not arise if the redress of inequality were confined to inter-personal inequality, without extending it to inter-group inequality. After all, one might say, the only relevant criterion of differentiation among individuals is the economic criterion, not differentiation according to caste or religion or social and educational backwardness.

As it happens, there is a special circumstance under which the argument in the preceding paragraph must be deemed to be not just plausible but also convincing. This relates to the situation in which populations are homogeneous—that is to say, circumstances in which individuals are identical to each other in respect of all their non-income characteristics. This, as we have seen in an earlier article in these pages, is a typical assumption underlying the utilitarian calculus. Unfortunately, the assumption falls hopelessly foul of the empirical facts of the case. The world is the exact opposite of homogeneous. It is severely and multidimensionally heterogeneous—in respect of age, sex, disability, health, caste, religion and a host of other non-income characteristics that are of importance in determining individual advantage or disadvantage.

The demands and interests of inter-personal equality and inter-group equality would coincide precisely if populations were homogeneous. But these could well diverge when populations are heterogeneous. A theory of equality which abolishes contradiction by denying a crucial aspect of empirical reality must be deemed to be a poor theory. On the other hand, a theory of equality which takes on board the reality of heterogeneity is thereby enabled to resolve the apparent contradiction between inter-personal and inter-group equality by recognizing that there exists a valid difference between the two notions of equality.

The difference in question is what in jurisprudence is often referred to as the difference between formal and substantive equality. The most elegant distinction I have encountered is the one drawn by the late Harvard jurist and philosopher Ronald Dworkin. He spoke of two kinds of the right to equality: “the right to equal treatment" and the “right to treatment as an equal". The first right, as Dworkin explains, is the right to an equal division of “society’s burdens and benefits". The second right is what he calls the right to “being treated with the same respect and concern as anyone else". In Dworkin’s view, the second of these two rights to equality is “fundamental", while the first right is “contingent" and “derivative".

It is easy to see what this means when we note that in any homogeneous population, the right to treatment as an equal would entail also the right to equal treatment. However, in a heterogeneous population, this may well not be the case, from the principle that the interests of substantive equality are poorly served by treating unequals equally. This is the just and simple case for compensatory provisions in favour of the backward classes. A pity that it is so often so profoundly—and so resentfully—misunderstood!

S. Subramanian is an economist and a former Indian Council of Social Science Research national fellow.

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