Inadequacies of anti-discrimination laws: Making a case for affirmative action

This paper argues that anti-discrimination laws and affirmative action are the two pillars of inclusive and holistic equality jurisprudence. Anti-discrimination laws are inadequate when implemented alone. Many modern constitutions explicitly provide for anti-discrimination laws and also confer authority on the State to make special provisions for the oppressed classes as enabling provisions. The discretion conferred on the state is actually premised on the trust that it will act in the best interest of the people at a given situation in adherence to the constitutional inclusiveness. The state shall not exercise its discretion arbitrarily while implementing these enabling provisions.
When the starting lines for different classes are not the same, anti-discrimination laws merely diagnose and arrest further inequalities without offering scope for reducing inequalities as they exist in past and present forms. Affirmative action thus becomes a compelling tool to ensure holistic equality.