A commentary on the positive discrimination policy of India
Tameshnie Deane2009, Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
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Abstract
The term "affirmative action" has different meanings and definitions which flow, and are derived from an individual's view of the legitimacy of the use of race-conscious or sexconscious preferential remedies for unlawful discrimination. Alternative terminology used to define or describe affirmative action includes but is not limited to "reverse discrimination", "affirmative discrimination" or "quotas" as in the Indian context. 2 White Paper GN 564 in GG 18800 of 23 April 1998. 3 Turner Past and Future 1. 4 Hodges We Want Jobs. T DEANE PER/PELJ 2009(12)1 29/166 show that if affirmative action measures and/or discriminatory measures are not properly thought out then affirmative action becomes burdensome and even more discriminatory rather than a means of achieving equality and redressing past wrongs. One might ask what benefit this analysis of the aspects of the Indian constitution dealing with affirmative action policies has for the South African context. An analysis of the political, legal and constitutional systems of other countries is very relevant. It helps to promote a better understanding of a country's own situation and assists in a proper evaluation of one's own institutions. It also assists in the interpretation of constitutions and help to enforce human rights. 5 Further, whenever there is a controversial topic like affirmative action, which poses a great deal of difficulty, such a problem can be solved with the help of a comparative study. 6 5 This information originally appeared in Ginsburg 2000 Brookings Review 3, and is drawn from the Cardozo Lecture given by Justice Ginsburg at the Association of the Bar of the City of New York on 11 February 1999. 6 Bhandari Basic Structure 110. This study will also be useful in that the experiences in India may be helpful in informing South Africa of the future and long-term consequences of affirmative action. Therefore this study of the relevant constitutional provisions relating to equal opportunity in this country becomes important. This approach becomes useful in that experiences in one country will help enrich another country to learn from such practices. However, it must be cautioned that when a country is looking at the experiences of other countries, the specific history of its own country must be born in mind together with the remedies and aims that its constitution wants to achieve. Therefore, even though South Africa will do well to look beyond its own borders when implementing affirmative action programmes it should do so with circumspection, taking into account its own specific history. T DEANE PER/PELJ 2009(12)1 30/166 2 Beginnings of discrimination in India-the Caste System There are many other countries and nations that are characterised by inequalities including social inequalities but in India these inequalities are highly structured in the form of caste. Caste has existed in India for such a long time and has undergone considerable change but it still involves millions of people. The continuation of superiority and inferiority by reason of ones skin colour, religion and economic and social status is a worldwide phenomenon. The caste system was not the creation of a single person like the raja (king). To a certain extent it developed out of a system of social practice that became a norm or way of life over several thousands of years. The issue of caste is a very complex and complicated one. Caste is perceived as "an exclusively Indian phenomenon which is not paralleled by any other institution elsewhere in its complexity, elaboration and inflexibility". 7 Kroeber describes the caste system as a "system of social stratification, examples of ranked aggregates of people, that are usually rigid, birth-ascribed, and permits no individual mobility". 8 In the caste system everyone is classified. The castes, like the system of apartheid and racial discrimination, teach us a fundamental social principle; hierarchy. 9 There are many and varied theories about the establishment of the caste system. These include religious, biological and historical theories. This classificatory system assumes that certain traits, qualities, functions, characteristics or powers are inherent in and definitive of each of the varnas. This system of caste is enormously complicated and not easily understood. The following paragraph attempts to simplify the issue of caste so as to give the reader an understanding of how the system works. 10 7 Searle-Chatterjee and Sharma Contextualising Caste. 8 Kroeber "Caste". 9 Ghurye Features of the Caste System. According 10 The biological theory of the caste system claims that all existing things have essentially three qualities in different ratios. Sattva qualities include wisdom, intelligence, honesty, goodness and other positive qualities. Rajas include qualities like passion, pride, valour and other passionate qualities. Tamas qualities include dullness, stupidity, lack of creativity and other negative qualities. People with different doses of these inherent qualities T DEANE PER/PELJ 2009(12)1
Key takeaways
- This article states the current position with regard to the caste system of and the reservation of jobs in the Republic of India in the context of affirmative action and the achievement of equality in the workplace.
- In India, affirmative action is known as "preferential treatment", "protective discrimination" or "reverse discrimination".
- However, because caste in India is a "social construction", in contrast to the beliefs in the US that "race is an obvious physical condition", it is believed that the "Indian jurisprudence has advanced well beyond American law in constructing and justifying affirmative action in terms of underlying social features".
- Another group that receives preferential treatment in India is women and The making of reservations as "compensatory discrimination" in India does not look to eradicate the caste system; it simply aims to boost some oppressed castes, whether at the bottom or the middle of the caste ranking.
- In India, the need really is to make these affirmative action programmes more effective, instead of confining them to reservations alone.
