Competing Equalities: Law and the Backward Classes in India

Competing Equalities: Law and the Backward Classes in India

Competing Equalities: Law and the Backward Classes in India

Competing Equalities: Law and the Backward Classes in India

Excerpt

India's system of preferential treatment for historically disadvantaged sections of the population is unprecedented in scope and extent. India embraced equality as a cardinal value against a background of elaborate, valued, and clearly perceived inequalities. Her constitutional policies to offset these proceeded from an awareness of the entrenched and cumulative nature of group inequalities. The result has been an array of programs that I call, collectively, a policy of compensatory discrimination. If one reflects on the propensity of nations to neglect the claims of those at the bottom, I think it is fair to say that this policy of compensatory discrimination has been pursued with remarkable persistence and generosity (if not always with vigor and effectiveness) for the past thirty years.

These compensatory discrimination policies entail systematic departures from norms of equality (such as merit, evenhandedness, and indifference to ascriptive characteristics). These departures are justified in several ways: First, preferential treatment may be viewed as needed assurance of personal fairness, a guarantee against the persistence of discrimination in subtle and indirect forms. Second, such policies are justified in terms of beneficial results that they will presumably promote: integration, use of neglected talent, more equitable distribution, etc. With these two -- the anti-discrimination theme and the general welfare theme -- is entwined a notion of historical restitution or reparation to offset the systematic and cumulative deprivations suffered by lower castes in the past. These multiple justifications point to the complexities of pursuing such a policy and of assessing its performance.

Independent India firmly and explicitly embraced the compensatory discrimination principle. This book is about the way in which this commitment has been incorporated into a regime of constitutionally guraranteed rights, including notably rights to formal equality, protected by courts equipped with broad powers of judicial review. It is an account of both institutional and intellectual accommodation, of government practice, and of legal doctrine. Among the newer (and almost . . .

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