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.
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