Equality Beyond Non-Discrimination: Constitutional Approaches in India and Europe

Abstract

This commentary undertakes a comparative constitutional analysis of affirmative state obligations in European human rights law and Indian constitutional jurisprudence, focusing on how differing historical and constitutional contexts shape the legitimacy and limits of state action in pursuit of equality. Across jurisdictions, equality is no longer confined to non-discrimination but increasingly entails duties on the State to prevent exclusion, remedy entrenched disadvantage, and secure the effective enjoyment of rights. Yet the expansion of such obligations raises persistent concerns regarding judicial legitimacy, institutional competence, and constitutional limits. The commentary argues that these tensions cannot be understood solely at the level of doctrine. Rather, they reflect divergent constitutional conceptions of equality rooted in distinct historical trajectories. In the jurisprudence of the European Court of Human Rights, emerging from a post-war liberal framework, affirmative obligations are articulated as “positive obligations” and justified as exceptional measures necessary to secure individual rights. Their scope is constrained externally through proportionality and the margin of appreciation. By contrast, Indian constitutional law, shaped by a post-colonial project of social transformation, embeds affirmative action within the equality guarantee itself, treating state intervention as integral to dismantling structural and historical injustice. Limits, in this framework, are negotiated internally through doctrinal devices rather than abstract balancing. Through close engagement with leading judicial decisions from both systems, the commentary demonstrates that the perceived elasticity of affirmative state obligations is not a product of judicial excess but a consequence of how equality is constitutionally conceived. The analysis contributes to debates at the intersection of law, history, and social justice by showing that questions of legitimacy and limits are inseparable from the cultural and constitutional foundations of equality itself.