The concept of affirmative action, also known as positive discrimination encompasses a range of policies and practices implemented by the government or other organisations to address the inadequate representation of specific groups of people. The issue of affirmative action has been discussed within the realm of constitutional law, giving rise to a continuous debate over the course of several years. There exists a faction that endorses affirmative action, contending that it serves as an essential element to the principle of equality. Conversely, another faction considers it a form of reverse discrimination and is skeptical about the efficacy of affirmative action measures in eliminating inequality.

In Bangladesh Constitution, the inclusion of affirmative action is rooted in the principle of 'compensatory' or 'remedial' discrimination. This principle endorses the implementation of these measures to tackle existing inequalities that stem from both past discrimination and present prejudices. Articles 28(4) and 29(3) allow for special consideration for women, children, and any backward sections of citizens as historical evidence underscores discrimination against such groups, resulting in societal inequalities.

However, a notable issue with affirmative action in Bangladesh is that our constitution does not expressly enunciate this principle with respect to the private sector. Article 29(1) of the Constitution prohibits discrimination in the service of the republic. Furthermore, Article 29(3)(a) speaks about making of special provisions to ensure adequate representation of any backward section of citizens in the service of the republic. The fact that the Constitution does not expressly envisage incorporate affirmative actions for the private sector further contributes to its limited efficacy in empowering marginalised groups.

Also, legal scholars have raised concerns regarding the potential of arbitrariness in the preference system if a specific reasonable classification approach is not established. The example of India can be cited in this context. In the case of R.K. Garg v Union of India (1981), the Supreme Court ruled that while the principle of equality in the Indian constitution prohibits discriminatory legislation, it does allow for a reasonable classification of objects, persons, and transactions to meet specific legislative objectives. In the case of Saurabh Chaudri. v Union of India (2003), the Supreme Court of India established two conditions for reasonable classification. The court held that the classification should be based on clear differentiating factors that separate individuals or things that are grouped from those that are excluded from the group. Additionally, there should be a connection between the purpose of the action and the criteria used for classification. If a classification made by the legislature lacks reasonabeness and justification, it should be deemed discriminatory.

Moreover, a significant development in the United States' jurisprudence was that the courts developed the 'strict scrutiny' test, which permitted the use of racial categorisation only in cases where there were 'compelling governmental interests' and specific objectives. Recently, in Students for Fair Admissions, Inc. v President and Fellows of Harvard College (2023) resulted in the prohibition of race-based affirmative action programmes in the context of university admissions. Nevertheless, it is important to note that the normative efficacy of the test may be called into question due to the ideological gap among justices of the US Supreme Court (Republicans viewing it as discrimination and Democrats as promotion of substantive equality).

In essence, the objective of an affirmative action program should be to enable and promote transformation, rather than impede any potential development. Therefore, affirmative action must be implemented both in the public and private sectors in our country. And lastly to prevent arbitrary decision-making in affirmative action policies, it is imperative to establish nuanced reasonable classification tests.

The Writer is Official Contributor, Law Desk, The Daily Star.