What do you understand by Protective Discrimination? Does it violate the principle of fairness?
Protective Discrimination: In the contemporary debates about equality, we do not talk of legal equality only in the sense of equality of opportunity but also ‘equality of conditions’ and ‘equality of outcome or results.
Since the son of a millionaire and the son of a laborer do not get equal opportunities, justice as fairness demands that the social environment must be changed if equal start for every one is to be provided. This can be achieved only through collective action. Also the ‘equality before law’ and ‘equal protection of law’ demand that everyone, should not be treated alike.
Though the legal equality has granted the equality of opportunity, but it has not been able to reduce economic and social inequalities whether based on race, sex, nationality, education, challenging the establishment of a just and fair society.
So the big question is how to bring about such an equality? One solution to this problem of creating an equalitarian and egalitarian society found in the twentieth century was to provide protective discrimination’s that is giving unequal treatment to equals either by graphic favors or imposing a burden.
However, the policy of giving favored treatment through ‘protective discrimination’s’ to certain members of the deprived groups because such groups have suffered systematic discrimination in the past has generated a fierce philosophical debate in the contemporary political theory.
Such favored treatment include ‘privileged access to jobs, employment, admission in educational institutions etc., and the recipients can be lower castes, classes, women, children, tribals, negroes, backward classes etc.
These policies of protective discrimination’s or ‘rational discrimination’s’ or ‘affirmative action’ are also called ‘reverse discrimination’s’ because they embody race, class, caste or sex as the criteria for differential treatment just as overtly as it was used against them in the past.
While the egalitarians and positive. liberals support such discrimination’s in order to achieve a just and fair society, the libertarians and legal positivists do not approve of such discrimination’s because this, in their opinion, affects the excellence, merit and the basic rights of freedom and property of the individuals.
PROTECTIVE DISCRIMINATION’S DO NOT VIOLATE HE PRINCIPLE OF FAIRNESS
There are various justifications that the protective discrimination’s do not violate the principle of fairness or justice. Some argue that protective discrimination’s are examples of compensatory justice in order to rectify the past – wrongs of unjustified discrimination’s against certain sections of the humanity such as lower castes, blacks, women, tribals etc.
Others appear to accept such prefertial treatment as necessary for end-state equality. There are others who are more pragmatic in the case of their race and wish to increase the number of their castes and. cuss it the state administrator and other professions.
The legal aspect of equality emphasizes only equal opportunities which means that access to important social institutions should be open to all on universalistic grounds. This equality believes in merit.
That is, all occupational structures of society should be filled on the basis of merit and individual achievements and should not be based upon age, sex, wealth, religion etc. However, gradually it was found that the abstract equality of opportunity, though important, was not sufficient.
The concept of equality should also be viewed historically. Since everybody in the society does not start his life from the same line and a number of groups, classes, castes, tribals have been discriminated socially, economically, political, culturally, mere equality of opportunity would lead to accentuate further inequalities. Hence, equality of opportunity needs to be extended to equality of conditions.
In order to have equality of opportunity, it is essential to guarantee equality of conditions–i.e., all competitors in the race should start from the same point with appropriate handicaps. And the equality of conditions further requires equality of results or outcome.
It means that through legislation and political means, equality of results is achieved irrespective of starting point or natural ability. Social program of protective discrimination in favor of the disadvantaged groups such as scheduled castes, backward classes, tribals, blacks, children either through reservations or compensation are deemed fair in order to bring about a meaningful equality of opportunity for all.
Protective discrimination’s are based on this argument :
- The equality of opportunity is very feeble,
- It does not really exist unless made more effective,
- There is a causal connection between being unequal and hence poor, illiterate, socially and culturally backward, underfed and undernourished,
- That something should be done to alter the distribution of goods and services in order to be fair to all
Any system of allocation of goods and services will fall short of equality of opportunity and will be unfair, if the allocation of goods in question works out unequally between different sections of society,
Protective discrimination’s is one of the various means to correct this imbalance in the distribution of good and services. As such it does not violate the principle of fairness.
PROTECTIVE DISCRIMINATION VIOLATE THE PRINCIPLE OF FAIRNESS
Some scholars are of the opinion that the social philosophy behind protective discrimination’s is somewhat confused and they have objected to it without dissenting from the ideal that social ‘policy ought to take into account the injustice perpetuated on the lower classes.
The protective discrimination’s are unfair in the procedural sense since granting privileges to individuals because of their birth, caste, race or sex is as discriminatory and unjust as denying them opportunity and jobs for the same reason.
It is also unjust since whatever wrongs were committed against their ancestors in the past, it is not clearly the case that today’s young superior and meritorious individual-the victims of such preferential employment practices-are responsible for this. To demand a compensation for the wrongs committed by their forefathers is unfair.
The protective discrimination’s violate the principle of fairness because they do not give consideration to merit and excellence. The libertarian are committed to developing the maximum level of excellence.
They argue that it is essential to maximize access and opportunity but that will not promote equality. In fact the emphasis should be more on mobility. The tendency cowards equality and distrust of excellence whether the educational institutions or employment is a great mistake.
Equality of opportunity is fine but if the education system tries to iron out distinction and merit, it is inexcusable. A society should try to foster the creation and preservation of what is best or as good as it possibly can be.
Such an aim can be pursued only by recognizing and exploiting the natural inequalities between persons, encouraging specialization and distinction of levels in education and accepting the variations in accomplishment in results. In fact the pursuit of excellence and creation of inequalities cannot be separated.
Such inequalities are inextricable from the recognition and pursuit of certain values too important to be compromised. The pursuit of excellence is also justified on the grounds that many original discoveries or creations eventually benefited everyone and others great works of architecture, for example, are important public goods.