Compensatory jurisprudence refers to the concept of providing compensation or reparation to individuals or groups who have suffered harm or injustice due to historical discrimination or systemic inequalities. In India, compensatory jurisprudence is inextricably linked to the concept of affirmative action or positive discrimination, both of which aim to promote social and economic justice for marginalised communities.
Several provisions in the Indian Constitution provide for affirmative action, including the reservation of seats in educational institutions and government jobs for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). These provisions are based on the recognition that these communities have historically faced discrimination and have been denied equal access to the country’s economic and social life.
The Path
In India, compensatory jurisprudence has also been shaped by landmark court decisions that sought to right historical wrongs. In the famous case of Kesavananda Bharati v. State of Kerala, for example, the Supreme Court held that the Indian Constitution contained an implicit doctrine of basic structure that could not be amended.
This decision contributed to the concept of constitutionalism by limiting the power of the executive and legislature. Similarly, in Indira Sawhney v. Union of India, the Supreme Court upheld the reservation of seats in educational institutions and government jobs for SCs, STs, and OBCs. The court recognised that affirmative action was required to address these communities’ historical disadvantage and to promote social and economic justice.
The issue
Despite these efforts, implementing compensatory jurisprudence in India is difficult. For example, dominant castes and communities frequently oppose affirmative action policies because they believe they are unfair and discriminatory. In order to ensure that all marginalised communities are included in compensatory jurisprudence, it is also necessary to address the intersectional nature of discrimination, including gender and disability-based discrimination.
Finally, compensatory jurisprudence is an important concept in India’s legal system that seeks to right historical wrongs and promote social and economic justice. While there are challenges to implementing this concept, India has made significant progress in addressing discrimination and promoting inclusivity through affirmative action policies and court decisions.
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