The Concept of Equality and Elimination of Discrimination in Employment: Scope and Developments | Daily News
(Part 2 of a three-part article)

The Concept of Equality and Elimination of Discrimination in Employment: Scope and Developments

The concept of equality which is central to the discussion of justice lies at the root of the democratic idea. Many great revolutions aimed at shaking off arbitrary rule of one form or another have stressed on this concept of equality. The question arises whether increased equality can only be achieved at the expense of liberty or conversely, whether expanding liberty must diminish equality. Learned opinion is divided on this matter. On the one hand, it is clear that certain degree of liberty is necessary to promote the ideal of equality. For example, to achieve economic equality in a society, a measure of liberty is necessary. Lord Acton, one of the outstanding thinkers on the concept of freedom, emphasized that equality unrestrained could destroy freedom.

Aspects of the Concept of the Right to Equality

Human beings who by nature are of unequal strength, talent and other attributes, are clearly not units of equal weight in their societies. The inequalities of nature are reinforced by the social and economic circumstances which as people commence life, place some at an advantage over others. Far greater is the impossibility of preserving general equality for any period, however short. A permanent state of equality is only the remotest dream.

There are two famous legal expressions linked to the concept of equality, namely (1) all persons are equal before the law and (2) all persons are entitled to equal protection of the law. The expression “equal protection of the law” is found in the 14th Amendment to the United States Constitution. Article 18 of the 1972 Constitution of Sri Lanka embodied both phrases. The Indian Constitution in terms of Article 14 also uses both expressions. Article 7 of the Universal Declaration of Human Rights contains both expressions. Article 26 of the International Covenant on Civil and Political Rights also embodies both aspects of the concept of equality.

Equality before the law is the negative aspect implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law. Equal protection of the law is a more positive concept and implies equality of treatment in similar circumstances.

The varying needs of different classes require separate treatment and the concept of equality does not take away from the State the power of classifying persons for legitimate purposes. The State is therefore permitted to make laws that are unequal and to take unequal administrative action when dealing with persons who are placed in different circumstances and situations. It aims at equality by treatment of equals. Equality can be denied, if government fails to distinguish between persons who for equal protection purposes, should be regarded as differently situated. Equal protection guarantees protection from legislative and executive tyranny and abuse of power by the judicial arm of the government by way of discrimination.

Inequality, per se, does not violate equal protection, for every selection of persons for regulation pronounces inequality in some degree. The inequality to offend the concept must be actually and palpably unreasonable and arbitrary. A classification having some reasonable basis does not violate this principle merely because in practice, it results in some inequality.

It does not forbid reasonable classification. In order however to pass the test of permissible classification, two conditions must be fulfilled, viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of the classification and the objects of the law.

It is now settled that the Equal Protection Clause prohibits discrimination not only by substantive law but also by law of procedure.

Formal Equality and Substantive Equality

Formal equality is premised on an abstract individual, judged on personal merit. The formal equality insists that group-based characteristics are irrelevant, and seeks to replace their use in allocating decision-making by merit-based criteria. One of the key insights of substantive equality is its departure from the symmetry of formal equality. It is not colour, gender or some other group characteristic per se which is in issue, but the attendant disadvantage, both social and economic.

This focus on disadvantage moves the anti-discrimination agenda into areas often inhabited by anti-poverty, welfare, or social exclusion policies. A key insight of substantive equality is that societal discrimination extends well beyond individual acts of prejudice. To bring about real change, the State should act positively to promote equality. This in turn requires the State to take affirmative action. As Sen argues, “Equal consideration for all may demand very unequal treatment in favour of the Disadvantaged.” Substantive equality entails a duty to provide.

Today it is a well accepted principle, at least in the developing world that what equal protection of the laws seeks is not mathematical equality or formal equality but substantive equality among various groups in society. Formal equality, with its focus on the abstract individual, has failed to address deeply entrenched patterns of social disadvantage.

In framing an alternative concept of substantive equality, distributive justice plays a central role. It calls for a duty upon the State to take positive measures to promote equality, including, where appropriate, allocation of resources. But this poses a dilemma for judges grappling with the contested meaning of substantive equality. Resource allocation requires a complex assessment of wide ranging facts and necessitates the setting of priorities and the balancing of interests.

Role of the Courts

Many welfare States make a political commitment to distributive equality by providing for the disadvantaged groups. The political arena is therefore seen as the primary space for developing the positive duty to provide, a space which judges are rightly reluctant to invade.

The courts’ role in applying substantive equality is then limited to scrutinizing the appropriateness of criteria for eligibility for exclusion. But because the aims of substantive equality are broadly in sympathy with provision of benefits, courts have searched for additional criteria, supplementing the grounds prohibited by formal equality, to distinguish appropriateness of criteria for eligibility from inappropriate categorization.

The courts should not be substituting their decisions for those of policymakers on resource allocation. Instead, they should be demanding proper democratic accountability. This entails an explanation of the decision which is reasonable and proportionate and is based on evidence rather than generalizations or judicial notice.

In this way the courts contribute to the democratic process both by strengthening accountability and by ensuring that political deliberation includes those who would otherwise be silenced in the political arena.

The duty to provide, which constitutes the core of substantive equality, remains a

primarily political impetus, unless the States’ Constitution includes express socio-economic rights or the courts are in a position to imply such rights from civil and political rights.

Nevertheless, even in the absence of such rights, courts have a role to play in furthering substantive equality. To ensure that substantive equality furthers its aims of addressing disadvantage in society, the courts will need to develop criteria to assess the State’s policies on resource allocation and the provision of benefits. On the one hand, the tradition of judicial intervention in positive state provision has been detrimental to substantive equality, using negative duties of restraint and formal equality to strike down or subvert positive and social rights.

The Concept of Equality and Employment: Court’s Approach

In November in 1973, in E.P. Royappa v State of Tamil Nadu, Bhagwati J with Chandrachud and Krishna Ayer JJ agreeing, claimed to lay bare a ‘new dimension’ to Article 14 of the Indian Constitution. Dealing with Article 14 and Article 16 (which deals with equality in matters relating to public employment) Bhagwati J stated :

“The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. From a positivistic point of view, equality is antithetic to arbitrariness.

In fact, equality and arbitrariness are sworn enemies: one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16.”

(To be continued…)

(The writer is a retired Professor in Law at the University of Sri Jayewardenepura, has practised in courts, and holds a PhD. in Law)