The idea of equality and equal rights
has changed throughout the ages. Protesters have pointed out that rights deemed
equal somehow or the other leave a gap through which some group or the other finds
itself disenfranchised of some rights. As a brief survey of the most major
documents proclaiming rights will show, the idea of equality keeps changing.
What these documents do not claim is that inequality is a fact of life
beginning from birth. Instead of explicitly trying to create a state of
equality, which try as one might, can never be achieved 100%, a method of acknowledging
inequality and then trying to ameliorate it by positive discrimination or
affirmative action should be adopted, as it is in various countries across the
world.
The
earliest human writings are from roughly 5000 years back. The earliest human
rights’ documents are from the Mesopotamian civilisation from roughly 4000
years back. Thus, as long as people have written, people have roughly written
about equality. Yet, history shows that there is always some other right to
strive for. Among documents which have had a major impact on modern human
rights’ documents, one may mention England’s 1215 Magna Carta which proclaimed:
‘To no one will we sell, to no one will we refuse or delay, right or justice’
(Clause 40). The ‘one’ in this line and in the document referred to ‘freemen’,
a term which excluded slaves and women.
The
1776 Unanimous Declaration of the Thirteen United States of America in
its preamble stated ‘We hold these truths to be self-evident, that all men
[italicisation mine] are created equal’.
The
1789 French ‘Declaration of the Rights of Man [italicisation mine] and
of the Citizen’ claimed ‘Men [italicisation mine] are born and remain
free and equal in rights. Social distinctions may be based only on considerations
of the common good’ (Article 1). This provoked Mary Wollstonecraft to write the
1792 A Vindication of the Rights of Woman signalling that the agitating
group had left out half of the human population.
The
1948 United Nations Universal Declaration of Human Rights began: ‘recognition
of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the
world’.
The
Indian constitution adopted on 26 January 1950 mentioned ‘equality of status
and opportunity’.
The
1848 Communist Manifesto, though not a document of human rights,
recorded that ‘the “dangerous class”, [lumpenproletariat] the social scum, that
passively rotting mass thrown off by the lowest layers of the old society, may,
here and there, be swept into the movement by a proletarian revolution; its
conditions of life, however, prepare it far more for the part of a bribed tool
of reactionary intrigue.’ In other words, it drew attention to the fact that
human rights’ activists had not secured much rights for ‘the “dangerous class”,
[lumpenproletariat] the social scum, that passively rotting mass’.
Ferdinand
Lassalle, in 1862, said: ‘The constitutional questions are in the first
instance not questions of right but questions of might. The actual constitution
of a country has its existence only in the actual condition of force which exists
in the country: hence political constitutions have value and permanence only
when they accurately express those conditions of forces which exist in practice
within a society.’ He also drew attention to the wide disparities between de
jure rights and de facto rights.
In
the 1936 BR Ambedkar versus MK Gandhi debates following the publication of Ambedkar’s
Annihilation of Caste, Ambedkar pointed out that ‘the Mahatma says that
the standards I have applied to test Hindus and Hinduism are too severe and that
judged by those standards every known living faith will probably fail. The
complaint that my standards are high may be true. But the question is not
whether they are high or whether they are low. The question is whether they are
the right standards to apply. A People and their Religion must be judged by
social standards based on social ethics. No other standard would have any
meaning if religion is held to be a necessary good for the well-being of the
people. Now I maintain that the standards I have applied to test Hindus and
Hinduism are the most appropriate standards and that I know of none that are
better. The conclusion that every known religion would fail if tested by my
standards may be true. But this fact should not give the Mahatma as the champion
of Hindus and Hinduism a ground for comfort any more than the existence of one
madman should give comfort to another madman or the existence of one criminal
should give comfort to another criminal.’ Ambedkar’s politics was instrumental
in creating the positive discrimination system in electoral, educational and
employment opportunities in the government sector in modern India.
The
concept of positive discrimination or affirmative action acknowledges that
unlike what the 1776 American Declaration or the 1789 French Declaration state,
equality is not ensured at birth. People (men, women and intersex people) are
born in a specific geography, in a specific family with some or no religious
affiliation, some or no sub-community identifiers such as caste or tribal
identity, speaking one or many languages (including non-vocal languages such as
sign languages), having certain physical characteristics including the presence
or absence of some senses or organs, with a set of neurological characteristics
which may or may not be as diversely spread as in the rest of the population,
and in a family with its own unique economic position. Thus, people are as far
removed from equality at birth as is possible the stretch of imagination. How
to ensure the 1948 ‘equal rights’ of the UN Declaration so as to achieve
‘equality of status and opportunity’ as envisaged in the Indian Constitution?
My
readers must have read about some or all of these rights in their school
history or civics or philosophy text books. As we grow older, we realise that equality
of opportunity can never be ensured. The inequalities with which we are born at
birth and the inequalities we accrue as we keep growing ensure that
opportunities are never perfectly equal. Imagine two lines which are at just
more than 0.1 degrees from each other. They make look similar and parallel but
the longer one keeps drawing them, the more apparent it will be that the two are
not parallel but are rather divergent.
Think
of identical twins. Their genes may share a high degree of similarity but with
some differences. However, as they keep growing older, their epigenes keep
changing differently based on their different lifestyles. If we start off with
an inequality, however small, over time, those inequalities will only increase.
Given
that inequality exists, how best to make the world a fairer place for a larger
section of the world’s inhabitants? Positive discrimination is one way. In
India, positive discrimination is geared towards providing better electoral, education
and employment opportunities in the government sector for populations which may
be subject to negative discrimination. The point is to increase
income-generating abilities and to have a fairer share in legislation. However,
once income-generating abilities have been provided and the beneficiaries
attain a level of income above the minimum wage, the positive discrimination
system in education or employment for the descendants of those beneficiaries does
not always end. Positive discrimination is not always linked with income
(though in some cases, such as in the case of OBCs, it is). A move to introduce
such a check is under debate in the judiciary and in the legislature. In the
public education sector, an implicit check is already there in the form that
even those who apply for positive discrimination in competitive entrance exams
are denied that positive discrimination if their marks are already eligible for
admission even without the added positive discrimination. Given that the
government sector itself is only a minuscule portion (2%) of the employment
sector and is increasingly overshadowed by the private sector in education, it
is not the only forum for ensuring a fairer place for previously negatively
discriminated against populations.
The
recent changes in affirmative action in the USA present an interesting
counterpoint. Beginning from the late 1980s onwards, Indian software engineers
started to migrate in large numbers to the developed world, and a large portion
of such professionals went to the next largest country by population size, the USA.
Such professionals, one may argue, represented those who had managed to reach higher
levels of education despite their challenges or because of their privileges
over their compatriots. When they reached the USA, their children, too, often
tried to live up to the high academic standards of their parents and their
fellow immigrants from India. (The USA national spelling bee competition is a
good example of this trend. Whereas there were a few winners of Indian origin
in the 1980s and the 1990s, there hasn’t been a winner of any other ethnicity
since 2008). Chinese students often also followed a similar trajectory but
their comparatively lesser grasp of the English language left the field for
people of Indian ethnicity to find better opportunities in the USA. The
top-ranked universities in the world, many of which are in the USA, often found
that their incoming students were roughly 50% of Asian ethnicity (given that
India and China have 35% of the world’s population and the other Asian
countries have another 25%, it is not surprising). In order to ensure greater
representation of other previously legally discriminated against populations
such as Black and Latino, affirmative action in the USA set down limits for
incoming students of certain ethnicities. This reduced the number of incoming
students from Asian backgrounds, who went to court arguing that it was
discriminatory against them. The court ruled in their favour for the time being
in 2023. This case study highlighted several issues. One, that discrimination
exists in several layers and is highly contextual. Thus, affirmative action
should also take into account the existing status of the intended beneficiary
and not go by historical precedent alone.
Other
than through such positive discrimination, what are the other ways? One way
perhaps is to acknowledge that inequality exists. The 1973 tennis match between
Billie Jean King and a sexist Bobby Riggs, which was dubbed as one among many
‘Battle of the Sexes’ did little to address the core issue of gender inequality.
In competitive sports where physical prowess is a factor, men and women compete
separately. In sports such as wrestling, weight lifting and boxing, even for
each sex, there are categories for a range of weights in order to ensure that
physical strengths of the competitors are not vastly different. It bears to
mention here that in several sports where physical prowess is a factor,
hormonal and chromosomal factors often work against some people who identify as
women. The standard response of sports bodies is to ban those sportspersons.
Instead, these sports bodies could create sub-categories for women at the
higher end of the weight scale or for men at the lower end of the weight scale
or any such similar proposal to ensure greater participation but also be less
unfair in the process.
This
brings in the question of empathy. What is empathy? Empathy may be putting
oneself in the proverbial shoes of another person to feel what that person
feels. It is only when one acknowledges the other person as being as much
worthy of respect as oneself can one be empathetic.
Inequality
exists among men and women and intersex people, people of different religions,
race, caste, geography, class, language, physical ability, and intellectual
ability. Rather than striving for equality of treatment which leads to not
acknowledging the inequality and doing nothing by way of positive
discrimination, one approach of dealing with inequality suggests first
acknowledging inequality, then finding means of positive discrimination and
finally developing the capacity to empathise with others, none of whom are our
equal.
Returning
to de jure and de facto rights and treatment of inequality, two
factors become clear. Rights proportional to population is a path bestrewn with
danger. In India, there is an ongoing political debate about rights
proportional to caste populations. This ignores the logic that if one were to
extend that to religion or language or any other aspect, it would be highly politically
unpalatable. Thus, reducing inequality is not always best achieved through
political means. Empathy lies at the core of reducing inequality. As the
history of human writing tells us, empathy ebbs and flows and garners enough
public support to achieve some kind of reduction of inequality only at certain
points of time in history. A host of factors allow that moment of radical
change. De jure rights often lose their de facto prevalence owing
to a loss of empathy. Human beings are not automata and are subject to
emotions. As long as society exists, inequality will persist because of factors
beyond the control of any system. The point is to continually strive to reduce
inequality by allowing empathy to develop within us. Rights are not given, they
are seized; but rights are maintained not by State control but rather by
empathy. If one were to look at various societies across the world, one would
realise that various kinds of empathy in different degrees exist in society
going beyond juridical laws. The answer to inequality is within us, rather than
out there in the world. How best to bring it about requires educating ourselves
about empathy and learning to see the various inequalities that exist around
us. Learning to know and learning to see are more important than political
struggles.