On the Basis of ‘Backwardness’

Following the reinstatement of a quota system that reserved 56% of vacancies in public service posts for different groups by the High Court of Bangladesh, students in Bangladesh have demanded reformation of the quota system. The student-led protests have since escalated into violent unrest involving clashes with law enforcement agencies. To quell the protest, the government imposed a nationwide curfew, blocked the access to internet, and police were issued a ‘shoot on sight’ order, with more than 100 people having been killed.  On 21 July, the Supreme Court of Bangladesh overturned the decision by the High Court and ordered the government to limit the quota to 7%, allocating 5% to the children of Biranganas (war-affected women), martyred freedom fighters and freedom fighters, 1 % to ethnic minorities, and the remainder to people with disabilities and third gender persons. The government of Bangladesh has followed suit. The Supreme Court thereby eliminated the quota of 10%  previously reserved for women. This reflects a dangerously narrow conception of equality which could negatively impact Bangladesh’s use of special measures such as quotas to redress women’s subordinated status.

The Quota System Controversy: A Snapshot

After the liberation war in 1971 and before the adoption of the Constitution,  the government decided to introduce the quota measures by allocating 30% of the vacancies for public posts to freedom fighters to acknowledge their contribution.  The subsequently adopted Constitution included provisions that allow the Government to use special measures such as quotas to advance ‘backward’ sections of the society while also highlighting women and children as a special group in need thereof [art. 28(4)]. In particular, the Constitution suggests though does not require the representation of the ‘backward’ segment of the society in public employment [art. 29(3)(a)]. While the Government has brought certain changes to the distribution of the quota over the years, until 2018, 56% of all civil service posts were enjoyed by those who fell within the quota categories. This included a quota of 10% for individuals from certain districts, a quota of 30% assigned to freedom fighters including their children and grandchildren, 10% women,  5% for ethnic minorities, and 1% for people with disabilities.

Since Bangladesh is currently grappling with a high youth unemployment rate and the quota system barred most students from holding  public posts, students across the country led mass demonstrations  demanding the reformation of the quota system. In particular, students criticized the extension of quota benefits to grandchildren of freedom fighters, especially in light of the controversial nature  of the freedom fighters list due to its lack of transparency. Additionally, most of the time, public posts under the various quota categories remained vacant  as the government failed to find suitable candidates under the quota. Hence, students asked the government to reduce the quota from 56% to 10% by focusing only on the groups who face systematic disadvantages such as ethnic minorities. However, instead of reforming the system, the government decided to abolish the entire quota system. After a descendant of a freedom fighter and six others filed a writ petition, in June 2024, the High Court of Bangladesh, however, ruled that the government decision was illegal and reinstated  the quota system.

The Supreme Court’s Order and Its Constitutional Significance

The High Court noted that the quota for the freedom fighters and war-affected women were announced (5 September 1972) before the Constitution came into effect (16 December 1972). Like other ‘acts and deeds’ done during the transitional period that have been ratified under Article 150 of the Constitution which deals with giving effect to transitional and temporary provisions, the introduction of the quota should be considered legal. It became, to say in the Court’s words, a ‘vested right of the freedom fighters and their children’.  In response, the government appealed, arguing that quotas in public employment are policy decisions to be made by the government which the Court cannot intervene in. While this is generally true,  the Court has sometimes intervened in matters of policy for the sake of the ‘greater public interest’.

In a brief verdict, the Supreme Court overturned the High Court’s decision and delineated 93% of the public posts for general students. The Court preserved the quota for freedom fighters, people with disability, ethnic minority and third gender persons but struck down women’s quota. It justified its intervention under Article 104  which allows the Supreme Court “[….to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it….]”. The term ‘complete justice’ does not have any defined contents and remains as an open-textured idea. It remains to be seen how the court has connected the dots between the policy of affirmative action and the notion of ‘complete justice.’ The government has decided to follow the Court’s order, despite the Court mentioning that the government has the latitude to change the quota.

The Court’s decision in favour of the student’s demand is laudable, for it acts as a check against arbitrary policy measures having serious human rights implications, regardless of their benign purpose. However, at the same time, by abolishing the women’s quota, the order also evinces a regressive view of Bangladesh’s constitutional obligation to achieve equality for which affirmative action for certain segments of society serves as a catalytic means. Specifically, it both ignores that the Constitution specifically envisions the use of special provisions to advance women’s equality and indicates the Court’s retreat to a formal conception of equality.

Bangladesh’s Constitutional Commitment to Equality

Bangladesh has a constitutional obligation to guarantee equality and non-discrimination. Article 28(2), for example, speaks of the equality between men and women. The provision is  comparative in nature and thus enshrines a formal approach towards equality: likes should be treated alike.  However, an exception to the Constitution’s vision of formal equality is Article 28(4) which permits “special provision[s] [to be taken] in favor of women or children or for the advancement of any backward section of citizens”. This specifically allows for special measures such as quotas, even if unequal to others, to address the disproportionate marginalization and subordination of different groups. While the Constitution is notably silent on the meaning of the term ‘backward section,’ the reference to women and children within the same provision suggests that the term ‘backward’ could be interpreted to include those groups who face systematic injustice due to subordination and vulnerability based on their identity markers. The Court’s decision to scrap the quota for women thus runs counter to the Constitution’s explicit recognition of women as a rightful beneficiary of quota measures.

A Mistaken View of Women’s (In)Equality

The Court’s move is especially troubling given the much lower employment rate of women in Bangladesh compared to men. According to the 2022 Household Income and Expenditure Survey, in Bangladesh, women participate at a much lower rate in than men in employment sectors ((42.5% vs 81.3%), with women in urban areas facing even higher unemployment rates than women living in rural areas. When it comes to public services, anything even remote to gender parity remains elusive. For instance, women only represent 6.86% of the Bangladesh Police. Not only does the Court’s order thus overlook the actual reality of women’s lives in society. Canceling the quota for women also implicitly suggests that the Court considers Bangladesh’s society to have reached a point where inequality between men and women no longer exists, rendering any special measures as it pertains to employment for women redundant.

This flies in the face of reality and also contradicts its prior acknowledgment of the deep-seated subordination that women face in society.  In the Shamima Sultana Seema case (2005), while dealing with the reserved seats for women in parliament, the Court emphasized that to address the issue of special measures, it is important to go beyond the requirement of sameness in understanding (gender) equality to make sense of the context where women operate. It pointed out how gendered expectations such as care work have a discriminatory impact on women’s lives. Thus, special measures were to remedy the wrongs women have suffered historically because of their ‘unique’ position in the society. The Court justified the preferential treatment given to women by invoking a substantive conception of equality, pointing out that the goal of such special treatment is ultimately to put women on an equal footing with men.

The Court’s view of equality in this case too is subject to criticism. While pursuing equality between men and women is not without its own merit, adopting affirmative action solely on this equality ground can only legitimate those special measures that allow women to obtain what men already have. The rights and privileges of men, in other words, remain the referent point for determining the type of rights and entitlements women should be granted. Instead, the purpose of preferential treatment should be on achieving true substantive equality that should address and acknowledge ‘the distributional, recognition, structural, and exclusive wrongs experienced’ by women without necessarily conforming to the standard of gender equality where men remain the ideal referent. The cancellation of the women’s quota therefore runs the risk of not only hindering the achievement of gender equality but also limiting the scope to utilize quota measures for the purposes that, while not necessarily related to gender equality, promote difference, diversity, and inclusivity in the employment sector.

Conclusion

The Constitution has imposed a duty on Bangladesh to ensure equality while allowing the government to adopt special measures for socially disadvantaged groups such as women to achieve the constitutional goal of equality. Indeed, the constitutional provisions for affirmative action ask to take seriously the complex reality that shapes women’s experience in society and seek to remedy the wrongs that women have suffered due to the structural disadvantages and subordination.  Yet, the recent Court order has struck down women’s quota which suggests that the Court has failed to understand the actual reality of women’s lives in Bangladesh’s society. In turn, the absence of a women’s quota will only serve to deepen existing inequalities.