Authored By: Sam S Siryon
Apeejay Stya University-Gurgaon
Abstract:
India is a country in the subcontinent of Asia specifically situated in South Asia with over 1.46 billion people as of 2025 and is a diverse country in culture, religion, language and people. For the purpose of this paper, India is also a common and civil law country in which the Constitution is supreme authority which guarantees fundamental rights and the rule of law to all its diverse citizens. Although India is a common law country (judicial precedents are primary sources of law), India has a complex hybrid (mixed) legal system in which customary and religious laws governs personal matters. On the other hand, Liberia – a small country along the coast of West Africa with little over 5.7 million people as of 2025 also a country with diverse culture and language and is a common law country as compare to India. Liberia, being a common law country has provided within is constitution the fundamental rights of all citizens and the concept of rule of law is likewise applicable in its legal jurisprudence. Both countries having diverse society of cultures, tribes and classes, the concept of equality is highly emphasized in their constitutions for the purpose of eliminating discrimination on any unjustifiable grounds.
Howbeit, the concept of protective discrimination describes these affirmative actions which are designed particularly with the aim of granting special privileges and advantages to people of a marginalized section in the society. The overall objective is to correct past and present discrimination which existed among the society. Thus, by providing special facilities, reservations in education and employment, and preferential treatment to those weaker, marginalized or disabled section of the society, the state hopes to ensure social justice and a balance treatment to all its people.
As the name describe ‘protective discrimination’, it aims to protect and safeguard the economically, socially, and educationally backward class of the society and elevate underprivileged section of the society to positions where they can compete on equal footing. These actions bring alive the real definition of social justice and equality. The constitution however, calls for equality before the law which applies to all persons, the concept of fairness, fraternity and equality itself is not made complete without special provisions being given to these group of people. Equality in this context means that ‘among equals the laws must be equal’. When both nations use this concept as a tool to eradicate the long-practiced discrimination based on class, tribes, or other backwardness, then the full meaning of social justice, equality and fraternity can be realized.
Key words:
Equality, rule of law, social justice, fraternity, reservations in educational institutions and public employments. Protective discrimination favoring weaker sections of the society including socially, economically and disabled or marginalized section of the society and fulfillment of the principles of social justice and fairness.
Introduction:
Under the Indian judicial system, the constitution places high emphasis on the term ‘affirmative actions’ in a conceptual sense. As part of Part III of the Indian constitution which particularly speaks about fundamental rights to all citizens as well as non-citizens. Prior to the enactment and enforcement of its constitution, India has over the past centuries been a caste-based society having groups like the Scheduled Castes (SCs) and Schedule Tribes (STs) who faced severe oppression, bonded labor and exploitation, couple with these were the idea of untouchability towards those from the SCs/STs background. This idea of untouchability which was a major form of discrimination within the Indian society meant that; people of the lower caste (varna system) who are neither the Brahmins, Kshatriyas, nor Vaishyas would be socially excluded from the society[1]. This group commonly referred to as the Dalits were considered as impure and they were socially humiliated, exploited and denied basic rights to these communities, that they could not have access to public services, places or things. It was a notion that whatever the Dalits would touch, that thing itself would automatically become unclean thus they were never allowed to drink from public pumps, they were always forced to walk with beaker around their neck because it was believed that even their saliva would pollute the earth and make it unclean for the upper castes. There are other forms of discrimination practiced in India, these are based on religion, race, gender, sexual orientation and disability but casteism was a widespread inequality in the society. Although the constitution under the provisions of Article 15 and 16, prohibits discrimination on grounds of religion, race, caste, sex or place of birth, challenges persist in addressing discriminatory practices particularly in private sector and societal attitudes[2].
Meanwhile in Liberia, the idea of discrimination hits a little different perspective. Discriminatory practices in Liberia dates back to the Americo-Liberian rule wherein indigenous Liberians were subjugated to the Americo-Liberian elite who held political powers for over centuries and this led to significant political, social and economic disparities which resulted into decades of conflict. In historical Liberia, indigenous Liberians were largely excluded from the political processes of their state and there were even unreasonable restrictions on owning land in their own country. They faced economic exploitation which created a deeply unequal social structure in historical Liberia, with the Americo-Liberian minority holding most of the power and wealth of the country. Gender discrimination in Liberia has been a major challenge for the country. This form of discrimination has resulted in women and girls facing barriers to education, healthcare and educational opportunities couple with that, they are being subjected to harmful cultural practices like Female Genital Mutilation FGM and other forms of patriarchal norms which subject them to early marriage, rape and domestic violence.
Research methodology:
This paper is of descriptive and explorative nature that critically analyze the legal system of both India and the republic of Liberia as it relates to the idea of protective discrimination under their respective jurisprudence. This paper relies on both historical and current-day realities as grounds on which it explains the concept of discrimination and proposes the idea of protective discrimination. This paper relies on from primary sources like Constitutional provisions, statutory laws and International Treaties to explain the proposed protective discrimination, and secondary sources like legal journals, websites and blogs and articles to navigate through the historical and current-day realities of discriminatory practices in both countries.
Review of Literature:
In India, it remains the State’s solemn responsibility to make laws that seeks to balance both the weaker section of the society as well as the quote-on-quote ‘economically strong’ section and this is guaranteed under constitutional provisions. With an honest consideration the provisions enshrined in the Preamble of the Indian Constitution, the state is bound by law to ensure social, economic and political justice to all its people. This means that, for the preamble to be completely realized, the State/Government must seek to provide all necessary means to ensure that there is equality in the distribution of the wealth of India.
This is what the Preamble Offers:
It is provided that all the Peoples of India freely agreed to constitute India into a Sovereign Socialist, Secular and Democratic Republic. The preamble puts it as;
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a 1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the 2[unity and integrity of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION[3]”
The point of uttermost importance to this paper, is the Resolution to constitute India into a Socialist republic. This means that, the government must prioritize making sure that all the people of India are sufficiently benefited with the country’s resources. The Preamble also calls for Social, economic and Political justice to all Indians regardless of their class, caste, religion or place of birth. Justice in this context means that the State would ensure fairness at all cost and to all section of the society regardless of any factor of unjustifiable discrimination. Justice comes along with fairness and together the concept aims to create opportunity to the lower class to facilitate equality in status and wealth distribution. By creating and providing opportunities to those in the lower class the State provides an environment which enables equality and sets all people on equal page in the Society.
The Preamble clearly calls for equality of status and opportunities which means that not only those of the General Category (GC) or upper class would be competent to benefit from the country’s wealth but all people inclusive of disabled, Schedule Castes (SCs), Schedule Tribes (STs), Other Backward Class (OBC), marginalized section or any other person who is a citizen of India. This concept entails that, all people of India would be placed on the same scale relative to opportunities in education, health, employment, status, wealth, and they would be treated as equals in the eyes of the Law.
Meanwhile, in Liberia the preamble while acknowledging the experience faced during the 14 years civil war by both women and children, it calls empowers the Liberian Republic to promote Unity, Liberty, Peace, Stability, Equality, Justice and Human Rights under the rule of law. The idea of promoting equality gives the ultimate power to the Liberian Government to provide all necessary facilities that enable equality amongst the Liberian people. These necessary facilities include equal access to public facilities, services, employment, health and education. The Preamble which sets up the primary objective of the Liberian Constitution – a living document that seeks to ensure fairness, fraternity, stability and equality among all Liberian regardless of Tribes, Region, Creed, or any other status, has thus, given the State the original power to make sure that all Liberians are treated on an equal scale. The Preamble rightly put it as;
We the People of the Republic of Liberia: Acknowledging our devout gratitude to God for our existence as a Free, Sovereign and Independent State, and relying on His Divine Guidance for our survival as a Nation; Realizing from many experiences during the course of our national existence which culminated in the Revolution of April 12, 1980, when our Constitution of July 26, 1847 was suspended, that all of our people irrespective of history, tradition, creed or ethnic background are of one common body politic; Exercising our natural, inherent and inalienable rights to establish a framework of government for the purpose of promoting unity, liberty, peace, stability, equality, justice and human rights under the rule of law, with opportunities for political, social, moral, spiritual and cultural advancement of our society, for ourselves and for our posterity; and Having resolved to live in harmony, to practice fraternal love, tolerance and understanding as a people and being fully mindful of our obligation to promote African Unity and International Peace and Cooperation. Do hereby solemnly make, establish, proclaim and publish this Constitution for the governance of the Republic of Liberia[4].
What the Indian Constitution Provides:
In its provisions, the Indian Constitution calls for equality under Article 14; that the state shall not deny any person equality before the law or equal protection of the law. This means that the law itself sees all persons as equals in dispensing justice therefore, the State must not treat or place any person in a better category then the other or discriminate against any person on any unjustifiable grounds.
Article 15 (3) clearly empowers the State to make special provisions for women and children when making laws. The Parliament is thus, empowered by the Supreme Law of the Land to make provisions that aims at empowering women and protecting children. These special provisions are preferential treatment to the weaker and/or vulnerable section of the society that creates chances for these groups to be on equal footing with the rest of the society. As women are vulnerable to violence and are subject of patriarchal discrimination on grounds that the society perceives them as the weaker section of the society. They have faced under-representation in public services, education and opportunities on grounds of gender. Children are victims of child abuse, trafficking, child marriage and other forms of discrimination. Therefore, the State has been given the powers under clause 3 of Article 15 to make preferential treatment that addresses these issues.
Other provisions include clause 4 and 5 of Article 15 which calls for preferential treatment for underprivileged section including those from the Schedule Castes (SCs) or Schedule Tribes (STs) in education, public employment and other public opportunities[5].
This action of the Parliament to make such laws or provide such opportunities for these people who have faced severe marginalization and discrimination is known as Affirmative action of the Parliament. Parliament ensure this by means of enforcement of Reservation Policies in Public employment/services, public education and other public opportunities. Reservation policy means that the state or public sector would have a certain number of seats reserved for these categories of people that they must be equally represented in public services. Furtherance to the provisions stipulated under Article 15, the preceding Article 16 clearly grants the parliament the powers to make reservation for SCs/STs in matters relating to public employment.
What the Liberian Constitution Provides:
The constitution of Liberia under the provisions of Article 6 also empowers the Republic to provide equal access to educational opportunities and facilities to all Liberians. This provision entails that, in educational institutions, both disabled, underprivileged and general category groups should have equal access to educational facilities even if it cost the state to take affirmative actions to ensure such. However, this does not give grounds to the Republic for arbitrary State actions but that all actions must be accompanied by a reasonable justification.
Under the provisions of Article 7 the Republic is thereto empowered to ensure the fair and equal distribution of the Country’s resources to all citizens of Liberia, by managing the national economy and natural resources in a manner that ensure the feasible participation of all Liberians. Under this provision, the Republic shall go to the extent of taking appropriate actions to ensure that all its citizens are benefiting equally from the Nation’s wealth.
Affirmative Actions by the State:
Affirmative actions can be understood as these policies which seeks to address the historically and socially marginalized or deprived section of the society with the aim of promoting their access to education and employment[6]. In a layman’s language, this refer to actions that is taken by the State to ensure the equal footing of all sections of the society with regards to education, health and employment. This action may be termed as Reservation policies for people who have been deprived or underrepresented in employment based on some societal discrimination.
Suggestions and Conclusion:
After careful consideration of all historical and present-day challenges faced by the underprivileges or deprived section, it is important that emphasis be placed on the enforcement and application of Reservation policies in public sector employment and education for the deprived society and that the laws made by parliament in this regard must be clear and emphatic to the point of ensuring and maintaining societal balance in all aspects of life in India. Reservation Policies must set a clear percentage to accommodate the Schedule Castes and Schedule Tribes in India. The guidelines made in the case of Indra Sawhney v. Union of India[7] (aka Mandal commission case) must be enforced throughout all public service sector in order to balance the ratio of employment of both sections of the Indian society. Constitutional provisions like Article 15 and 16 must be enforced to the letters.
Liberia on the other hand, must consider taking affirmative actions in striking a balance between women employment and children education. If the State can consider a certain percentage of women’s participating/involvement in public services, employment and education and politics, the society can experience a balance in the equation of men and women in employment and maintain a gender-equitable society. It is also recommended that those of the disabled section of Liberia, be given the opportunity to benefit from the country’s wealth by means of reservation. The Liberian Legislature should consider making Reservation in seats of public employment/services for backward classes like the Disabled and marginalized section like Women. Liberia is a small country with a relatively small population of which the issue of equality should not be a challenge however, the duty to ensure gender equality, and social justice for women, children and the disabled solely lies in the hands of the Legislature. The legislature may choose to enact laws similar to the Reservation laws (as provided under Article 15 and 16 of the Indian Constitution) passed in India or better still mandate a specific seat in public employment, health, education, facilities and opportunities for women, children and those from the disabled section of the country.
Author: Sam S Siryon
BA.LLB Honors
Apeejay Stya University-Gurgaon
Reference(S):
- Varna System in India| Meaning and evolution| UPSC Notes| Last visited Sept. 17, 2025
- A critical analysis of discrimination and various forms of discrimination| Sehgal| iPleaders| Last visited Sept. 17, 2025
- Constitution of India| Preamble | Legislative Department of India
Ministry of Law and Justice – Government of India, Legislative Department| Last Visited Sept. 19, 2025
- Constitution of Liberia| Supreme Court of Liberia| Judiciary | Preamble | last visited Sept. 20, 2025
http://judiciary.gov.lr/wp-content/uploads/2017/11/CONSTITUTION-OF-THE-REPUBLIC-OF-LIBERIA.pdf
- Constitution of India| Article 15(4) | Legislative Department of India
Ministry of Law and Justice – Government of India, Legislative Department| Last Visited Sept. 19, 2025
- Affirmative action in India| The Road Ahead| Dr. A.P Singh| Manupatra Article| Last visited Sept. 21, 2025
https://docs.manupatra.in/newsline/articles/Upload/D8950FA7-1328-4D4E-BB51-ED43F08A99BC.pdf
- Indra Sawhney v Union of India| Detailed Case analysis| Malviya| Lawctopus| last visited Sept. 22, 2025
https://lawctopus.com/clatalogue/clat-pg/indira-sawhney-v-union-of-india/
[1] Varna System in India| Meaning and evolution| UPSC Notes| Last visited Sept. 17, 2025
[2] A critical analysis of discrimination and various forms of discrimination| Sehgal| iPleaders| Last visited Sept. 17, 2025
[3] Constitution of India| Preamble | Legislative Department of India
Ministry of Law and Justice – Government of India, Legislative Department| Last Visited Sept. 19, 2025
[4] Constitution of Liberia| Supreme Court of Liberia| Judiciary | Preamble | last visited Sept. 20, 2025
http://judiciary.gov.lr/wp-content/uploads/2017/11/CONSTITUTION-OF-THE-REPUBLIC-OF-LIBERIA.pdf
[5] Constitution of India| Article 15(4) | Legislative Department of India
Ministry of Law and Justice – Government of India, Legislative Department| Last Visited Sept. 19, 2025
[6] Affirmative action in India| The Road Ahead| Dr. A.P Singh| Manupatra Article| Last visited Sept. 21, 2025
https://docs.manupatra.in/newsline/articles/Upload/D8950FA7-1328-4D4E-BB51-ED43F08A99BC.pdf
[7] Indra Sawhney v Union of India| Detailed Case analysis| Malviya| Lawctopus| last visited Sept. 22, 2025
https://lawctopus.com/clatalogue/clat-pg/indira-sawhney-v-union-of-india/
