Introduction: The Constitution of the Peoples Republic of Bangladesh prohibits any discrimination based on gender, race, sex, caste and religion and guaranteed the right to equality under the different provisions. However, women in Bangladesh represent half of the total population of Bangladesh and at the same time Bangladesh is the home of about three million tribal and indigenous people representing fifty ethnic groups.[i] But the participation of women and other minority groups in the job sector is not satisfactory. Therefore, as part of the fulfilment of the requirement of the Convention on the Elimination of All Forms of Discrimination against the Women (CEDAW), the signatory states are under obligation to make positive actions for the advancement of women in society.
The Concept of Positive Discrimination and Right to Equality: Positive discrimination also known as affirmative action is generally a process to take special initiatives which are intended to promote more equality by assisting groups of individuals who are experiencing or have experienced entrenched discrimination for them to have equal access to opportunities as the community at large. On the other hand, the right to equality is a guaranteed right under the different national and international Instruments[ii] and thus making no discrimination concerning gender, race, caste, sex and religion.
Provisions related to the Positive Discrimination in Bangladesh: Women are categorized as backwards and have been refused admission to the same advantages as men in society and hence positive discrimination is required to elevate their position.[iii] However, article 27 of the Constitution provides that all citizens are equal before the law and are entitled to the equal protection of the law. Despite gender equality being guaranteed in state and public life under the Article 27, the constitution of Bangladesh also provides some provisions related to positive discriminations for instance Article 28 (4), 29 (3) (a) and Article 65 (3). Article 28 (4) allows the state to take special measures for the advancement of women, children and other backward groups of the society whereas Article 29 though ensures equality of opportunity in public employment but it has also provided affirmative action which says that there will be no bar for the state to take measures in favour of any disadvantage portion of the society to secure their adequate representation in the service of Republic. Furthermore, by the fifteen amendment of the constitution, the reserved seat for women has been increased to 50 who will be elected by the member of the parliament based on proportional representation in the Parliament through single transferable vote under Article 65(3). Additionally, many special laws were enacted in Bangladesh to provide special rights to women and children- for example: Nari O Shishu Nirjatan Daman Ain, 2000.
Positive Discrimination in International Instrument: To ensure gender equality and promote the norms of women’s social rights, the Convention on the Elimination of All Forms of Discrimination against the Women was the first international mechanism among all existing efforts.[iv] CEDAW considers gender inequality as a problem and advocates inclusive women’s rights in all sectors.[v] In a democratic society, relational equality that is, equal status interactions in which no one is wrongfully subjected to others should be the goal because relational equality necessitates the allocation of specific assets, it is not dissimilar to productive equality.[vi] However, from the perspective of relational equality, certain distributive goals are important only if they assist us to attain a society in which no one is treated as a second-class citizen.[vii] Therefore, under Article 4 of the CEDAW, states are required by to promote a favourable atmosphere to prevent discrimination.
Practice of Positive Discrimination in Bangladesh: As part of the Article 28 and 29 of the constitution, the government has introduced a quota system soon after the adoption of the Constitution and it has been amended on several occasions.[viii] However, in 2018, the government abolished the quota system in first and second class job of public service after the severe opposition from the students.[ix] Although the participation of women in the public service has increased after the adoption of the quota system, the representation of ethnic communities are still insufficient in the public service and hence elimination of quotas in first and second-class government job can be seen as denying applicants from ethnic minorities equal opportunities and, as a result, harming equality of opportunity.[x]Despite the constitutional provisions of the positive discrimination, the method of implementation is not strong enough in Bangladesh. Furthermore, in addition to Article 65 (3), various statutes provide reserved seats for women in City Corporation, Upazilla Parishad and Union Parishad. Similarly, the right to equality was ensured under the constitution and hence no derogation is allowed. It was held by the Appellate Division in the case of Rabia Basri Irene vs. Bangladesh Biman that the action of Biman Bangladesh in fixing the different age of retirement for stewards and stewardesses is discriminatory and violation of Article 28 of the constitution.[xi] On the other side, in many cases it is believed that women are less efficient compare to their male counterpart and given these prevalent social ideas and patriarchal views are unlikely to alter very soon, just discussing discrimination against women is pointless. We need to take advantage of society’s discriminatory tendencies and turn them into a positive growth driver for women; in other words, we need to actively work on positive discrimination of women.[xii] Apart from that, we need to recognize women’s contributions in the home and establish provisions for monetarily paying them for the activities they provide. We must also provide them with economic empowerment possibilities, such as access to skill development and financial resources so that they can work and become financially self-sufficient and have a say in the family on an equal footing.
Conclusion: Dr Shanaz Huda observed that it is the time when the gender balance is most important particularly in the event of Bangladesh since 50% of the population are women who are actively contributing to the country’s economy.[xiii] In addition to that, equal opportunities for women and other ethnic communities also crucial for Bangladesh which will foster the diversity and harmony among the different communities. Therefore, appropriate laws safeguarding against and preventing discrimination are critical for a fair future as suggested by Beth Gaze and Belinda Smith.[xiv] The practice of positive discrimination still exists in the developed world including the United Kingdom and Canada in different names.[xv]
Writer: Aranna Hossain Sakib, 6th Semester, LL.B (Hon’s), Southeast University.
‘This essay had been submitted for the Essay Competition under the event ” Celebrating Constitution Day: Stepping into 50 ” organised by NILS Jahangirnagar University Chapter with the support of NILS Bangladesh in partnership with JUBAER AHMED AND ASSOCIATES and secured First Position in the competition.’
[i] ILO, ‘Equality and discrimination in Bangladesh’ < https://www.ilo.org/dhaka/Areasofwork/equality-and-discrimination/lang–en/index.htm> accessed 17 October 2021
[ii] Art. 27 of the Constitution and Art. 2,7 of UDHR, 2, 26 of ICCPR and 2 of ICESCR
[iii] Sayeeda Anju, ‘A STUDY ON POSITIVE DISCRIMINATION OF WOMEN IN LAWS OF BANGLADESH’ (2011) 53(3) Journal of the Indian Law Institute 491
[iv] Seo-Young Cho, ‘International Women’s Convention, Democracy, and Gender Equality’ (2014) 95 93) Social Science Quarterly 719
[vi] Sophia Moreau, ‘Equality and Discrimination’ in John Tasioulas (ed), The Cambridge Companion to the Philosophy of Law, (Cambridge University Press 2020)
[viii] Staff Correspondent, ‘Quota circular issued amid protests’ The Daily Star (Dhaka, October 5, 2018) <https://www.thedailystar.net/country/quota-system-in-bangaldesh-scrapped-officially-1642534> accessed 18 October 2021
[x] Parban Chakma, ‘Why quota reservation is significant for ethnic minorities’ The Daily Star (Dhaka, August 3, 2021) < https://www.thedailystar.net/law-our-rights/news/why-quota-reservation-significant-ethnic-minorities-2143736> accessed 18 October 2021
[xi] 55 DLR (AD) (2003) 132
[xii] Tasneem Tayeb, ‘Positive discrimination needed to protect women’s rights’ The Daily Star (Dhaka, September 3, 2021) < https://www.thedailystar.net/opinion/closer-look/news/positive-discrimination-needed-protect-womens-rights-2167126> accessed 18 October 2021
[xiii] Dr. Shahnaz Huda, ‘Positive discrimination can ensure gender balance’ The Daily Star (Dhaka, March 12, 2019) <https://www.thedailystar.net/law-our-rights/law-interview/news/positive-discrimination-can-ensure-gender-balance-1713619> accessed 19 October 2021
[xiv] Beth Gaze and Belinda Smith, ‘Equality and Discrimination Law in Australia: An Introduction’ (Cambridge University Press 2016)
[xv] Anju, (n3)