UNIT 5:

EQUALITY: SAMENESS AND

DIFFERENCE*
Structure
5.0 Objectives
5.1 Introduction
5.2 Types of Equality
5.2.1 Equality of Treatment
[Link] Formal Equality
[Link] Substantive Equality
5.2.2 Equality of Outcome
5.2.3 Equality of Resources
5.2.4 Equality of Responsibility
5.2.5 Equality of Dignity
5.2.6 Equality of Capability
5.3 Equality and the Indian Constitution
5.4 Sameness and Difference
5.5 Let Us Sum Up
5.6 References
5.7 Answers to Check Your Progress Exercises

5.0 OBJECTIVES

In this unit, you will explore the idea of equality and its need in society.
After studying this unit, you should be able to:
• Explain the meaning of equality
• Discuss basic theories of equality
• Understand its various types and
• Examine the debates on sameness and difference

5.1 INTRODUCTION

Equality as a term simply means being equal; however, it is a complex

political and philosophical concept that helps us understand and improve the
world around us. Equality is defined as the state of being equal, especially

* Paridhi Gupta, Research Scholar, JNU and Subhadeep Chowdhury, Research

Scholar, Ambedkar University, New Delhi
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Equality in status, rights, or opportunities, as per the Oxford dictionary, and it is
through these mechanisms that it tackles its opposite and a historically
existing social problem in the world today – inequality. ‘Equality’ denotes
correlation between a group of different objects, persons, processes or
circumstances that have the same qualities in at least one respect, but not all.
In this way, it is different from the idea of being identical or of sameness.
The concept of equality does, not, thus assume that things or people are
exactly the same or clones of each other, but that they are similar. It can be
used in both descriptive and prescriptive senses, depending on the common
standard against which two objects are compared and their similarity/
difference is judged. In its descriptive usage, the common standard is itself
descriptive i.e., it describes a measurable quantity, such as two people
being equally tall. On the other hand, prescriptive equality involves using
a prescriptive common standard wherein, based on a predetermined norm
or rule, such as men and women should have equal rights before law.
The prescriptive standard in this form has both a descriptive component
and a normative component. In our example, men and women form the
descriptive component as they describe to whom our predetermined rule
would apply, and the predetermined rule – in our case, ‘law’ forms the
normative component, that prescribes the way men and women should be
treated before it. The descriptive aspect helps define who would fall under
this norm such as that of the law. It is this prescriptive concept of equality
that has formed the backbone of modern social justice systems either via
law or other political movements that tend to challenge existing laws. In
this conceptualization, equality is a notion via which social justice may be
achieved in some respect among multiple groups of people. If we have a set
of descriptions that can help us identify unequal groups of people, then by
applying the normative component of prescriptive equality, justice maybe
achieved via specific kinds of treatment as per need. Thus, justice may be
strived for by either ensuring identical treatment, or through differential
treatment that may help achieve this normative state of equality wherever
in society it is not found to be so. This can be further explained through
looking at some early theories of equality.
Equality, as we know in modern times, is derived predominantly from the
concepts of equality and justice, as discussed by Aristotle in his writings
Nicomachean Ethics, where he uses the Greek word isos to denote equality.
He explains equality in terms of fairness as necessary for achieving justice
as a moral virtue in society. W. Von Layden in his book Aristotle on Equality
and Justice: His Political Argument, explains Aristotle’s idea of equality
as based on the idea of difference between people living under the rule of
a particular state, in which, he claims that equality could not have become
an issue if people had truly been equal. According to him, discrimination
should be replaced by equal or just treatment through legal means, public
measure, or revolutionary action. This conception introduces equality as a
value to be strived for by the people and the state, where justice can occur
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only between people who are fundamentally equal as citizens. Aristotle Equality : Sameness and
as an early thinker gave a limited conception of equality, confined to the Difference
concept of citizenship under a state and thus, its applicability was limited to
a narrow class of people.
Other scholars such as Thomas Hobbes, John Locke, John Stuart Mill, and
Karl Marx have expanded on the concept. Hobbes imagines the human free
of political, legal, and moral constraint existing in the state of nature. This
situation, according to him, would be that of mutual fear due to natural
equality. With this, the claim is that no one is subservient or prominent in
strength to not be vulnerable to other. Locke argued on natural and Biblical
grounds that human beings are born free and equal with natural rights to life
and liberty. In his work, The Second Treatise, Locke focused on the need
for social contract to protect equal rights and so that people may escape
conflicts over property. He believed material inequalities to be inevitable
as men have voluntarily given money value. According to Jean- Jacques
Rousseau, Locke had failed to resolve the conflict in the way of civic peace
and individual liberty that arose because of such unequal distribution. This
could be solved by equal redistribution of public holding amongst all citizens
under the contract. It was this idea that propelled the French revolution and
its following pillars of liberty, equality, and fraternity. Authors such as Marx
and Mill who were informed by the French revolution have focused on
aspects of economic inequality. While Mill believed that sharing of property
would lead to a loss of initiative, Marx believed in the opposite. Karl Marx
and Engels in the Communist Manifesto focused on the historical process
of economic inequality between the worker and the property- owning class.
Their understanding of equality was based on ending the differentiation
between social classes on the basis of ownership and exploitation that came
from it. The modern conception of equality, especially within the law is
based on various axis of inequality, such as class, race, gender, and caste in
India, and forms the basis of social justice.
These important theories on the concept of equality are, thus, connected
by varying themes of social justice. In the larger fold of prescriptive use of
equality, one may find further subdivisions of the concept based on what the
intentions of a particular strand of social justice system is. This is explained
in detail in the next section.

Check Your Progress Exercise 1

Note: i) Use the space given below for your answer.

ii) See the end of the unit for tips for your answer.
1) What do you understand by the term equality?
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Equality ………………………………………………………………………
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2) Explain some theories of equality.
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5.2 TYPES OF EQUALITY

There are four broad axes for equality - civil, social, political, and economic,
which can be seen at levels at which equality has to be achieved. They entail
that all citizens are subjected to the same law (civil), have equal access to
political participation and authority (political) and enjoy equal opportunities
(social). Economic equality implied removal of poverty and enjoyment of
wealth by all. There are, however, different ways to achieve equality on
different axes, which can be elaborated through various types of equality.
There are two ways to categorize equality; while the first categorization is
based on the principles of equality, the second is based on the subject or
‘what’ of equality.

5.2.1. Equality of Treatment

Based on the principles of equality, also called the Equality of Treatment,
there are two types- Formal and Substantive. Formal or popularly known
as legal equality assumes that one law should apply to all, without regard
to individual differences. It echoes the Aristotelian logic, that likes should
be treated alike. Even though it aims to treat people the same to produce
equality, it fails because it does not recognize diversity. Substantive equality,
on the other hand, recognizes differences and can be seen as equity. It looks
at the causes of disadvantages caused by differences, and aims to improve it
through equal opportunity, and dignity. This categorization has been part of
a large feminist debate. While formal equality has helped women get equal
wage for doing the same work as their male colleagues, it does not recognize
their double burden such as the housework. Further, natural processes such
as childbirth are often given as reasons for not hiring women workers as
they would work for lesser time than men. In such a scenario, the formal
equality method can be used behind logic of unequal work, unequal pay and
opportunity since it does not recognize biological and gender differences.
On the other hand, substantive equality would recognize these differences,
but at the same time, maintain equality of dignity and opportunity, and
therefore treat men and women the same.
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5.2.2. Equality of Outcome Equality : Sameness and
Difference
Equality of results focuses on the treatment to produce equality. It recognizes
the need for unequal treatment to achieve equal results and fairer distribution
of benefits. An example of this is affirmative action within the Indian
constitution that allows for reservations. The problem with equality of results
is that it does not fundamentally examine or change the conditions that lead
to discrimination. Therefore, the use of this strategy or framework has to be
accompanied by structural change to tackle the root of discrimination.

5.2.3. Equality of Opportunity

This framework recognizes that equal treatment alone does not overcome
the structural discrimination a person has faced. According to this view,
equal opportunities would help tackle institutional discrimination. Through
the use of the metaphor of a race, it is said, that people should have the same
starting point in the race, so that they can be judged fairly on individual
merit, without consideration of other identity factors of race, gender, etc.
While focusing on individual talent, this approach also underlines the
importance of choice. It is to say, once there are equal opportunities, a person
can make choices about their life. Bernard Williams in his work ‘The Idea
of Equality’ differentiated between procedural and substantive equality of
opportunity. Here, procedural opportunity meant removal of obstacles in the
path of disadvantaged to take that opportunity; however that does not ensure
that they will actually be able to do so. The second kind called substantive
equality of opportunity helps through measures that ensure that all citizens
have the means to fulfil the criterion for a particular opportunity.
5.2.4. Equality of Responsibility
According to equality of responsibility, a person should be held accountable
for his own actions, and thus places it in the centre of the autonomy of an
individual. Proponents of this view believe that while unfair distribution of
resources and goods is fair if it is caused by the person’s personal decision,
it is unfair when it arises out of conditions not within the person’s control.
Inequalities that are not the result of a person’s choice are unjust and should
be, therefore, compensated. Some examples of these are natural attributes,
or social attributes, i.e., socio- economic disadvantage a person has because
of their class, race, or caste.

5.2.5. Equality of Dignity

This approach is based on individual dignity and worth of a person as the
basis of equal rights. Unjust treatment towards a person is seen as harmful
and offensive to an individual’s fundamental human dignity. While an
interesting formulation, especially when equal treatment is denied on the
basis of lack of rationality, dignity as an intrinsic human characteristic can
counter that, it does not entail equality. Unless it is stated and recognized
that everyone has equal moral worth and not simply moral worth, inequality
cannot be tackled through this conceptualization.
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Equality 5.2.6. Equality of Capabilities
This approach has been popularized by Amartya Sen in his study of
equality. Amartya Sen proposes that distribution should be based on various
things a person is able to do or be during their lives. To evaluate a person’s
well-being, the focus has to be on a person’s capability for maintaining
that condition such as enough nourishment, health. According to Sen,
‘capabilities’ then are a measure of equality of capabilities human beings
enjoy to lead their lives. This approach, however, has been criticized as
being too open - ended and loaded with the difficulty of measuring well-
being as a marker for equality.

Check Your Progress Exercise 2

Note: i) Use the space given below for your answer.

ii) See the end of the unit for tips for your answer.
1) What do you understand by Equality of Treatment? Explain with
example.
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2) What is the difference between equality of opportunity and outcome?
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5.3 EQUALITY AND THE INDIAN CONSTITUTION

The Indian constitution endorses equality as one of its defining principles

and a fundamental right of the citizens of the country. Under Article 14 of
the Indian constitution, “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India.” The phrase ‘equal protection of the laws’ has been taken from 1-14th
Amendment of the constitution of the United States of America. While it
entails that all citizens are equal before law, it also allows for protection of
laws. In other words, laws which go against the grain of the fundamental
rights can be declared unconstitutional. It is further supported by other parts
of the constitution such as Article 15 which prohibits discrimination on the
basis OF religion, caste, sex, or place of birth, Article 16 which focuses on
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equal opportunity in public employment, and Article 17 which abolished Equality : Sameness and
untouchability. According to the Supreme Court of India’s judgement In Difference
the case of E. P. Royappa vs. State of Tamil Nadu & Anr, “equality and
arbitrariness are sworn enemies” and thus, the State cannot be arbitrary in
treatment towards individuals coming from different sections of society, in
such matters as public employment. Thus, equality was held to be antithetical
to arbitrariness in state action. Furthermore in 1976, a seven judge Bench
of the Supreme Court in the case of State of Kerala v. N.M. Thomas, (1976)
2 SCC 310 held that Article 14, 15, and 16 were equality rights and sought
to achieve real equality. It was held that section 15 (4), and 16 (4) which
allowed for special provisions and reservations for the marginalized were
not exceptions to 15 (1) and 16 (1), and, in fact, flow from them to bring to
reality the goal of equality. This was concretized with another judgment in
1992 which upheld this principle. The constitution, therefore, aims to provide
formal, as well as absolute equality. This would also necessitate actions by
the state for the removal of inequality and promote the sentiment of unity in
diversity among the citizens of India. This is even more prominently evident
in Article 25 of our Constitution that promotes equality of religious practices
to guarantee the religious freedom of diverse communities in India.
A more recent instance of reinstatement of constitutional equality was
the reading down of section 377 of the Indian Penal Code. The colonial
law criminalized same sex relationship between citizens as unnatural and
therefore, punishable, until recently. On 6th September 2018, the Supreme
Court of India repealed section 377 for consenting adults in the country.
The section was seen as a violation of the various fundamental rights such
as that of equality and was, thus, regarded as unconstitutional. It is via this
judgement that equality was considered the antithesis of discrimination in
the constitutional framework. Thus, when it comes to the constitutional
meanings attached to the concept of equality, it is seen that the meanings
are subject to change through time. However, the core principle of unity
in diversity for the citizens of India is upheld. An important point to
understand in the context of the Constitution and the concept of equality is
that there is a difference between Constitutional ends and means. The State
administers constitutional means to address social inequality that has been
historically present via affirmative action. The concept of equality before
law is addressed at either minimising or eliminating inequalities in terms
of income, status, access to the facilities and opportunities made possible
by the state. It also implies securing adequate means of livelihood and
promoting educational and economic interests of weaker sections of society.
This specifically includes the protection of Scheduled Castes and Scheduled
Tribes from social injustice and all forms of exploitation. Equality, a positive
right, postulates not merely legal equality but also real equality. Thus in this
vein, reservations and other special provisions extended by the state from
time to time, for the protection of minority rights is meant to address social
inequality that already exists, and protect those who are unequally placed in
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Equality society. They are, thus, the means of achieving equality at a certain point of
time in the future and are not ends in themselves.

Check Your Progress Exercise 3

Note: i) Use the space given below for your answer.

ii) See the end of the unit for tips for your answer.
1) Mention the rights in the Indian Constitution which ensure equality?
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5.4 SAMENESS AND DIFFERENCE

As we have seen in earlier sections, the concerns of equality are intimately

tied to the idea of sameness and difference; however, the debate between
sameness and difference has complicated our understanding of equality.
Feminists and race theorists have been the ones who have largely contributed
to the debate and expanded scholarship on the issue of sameness and
difference. As we also discussed earlier, the Constitution of India guarantees
equality as an antithesis of discrimination, and by doing so, also recognises
the sameness vs. difference principle. The principle of treating likes alike,
and unlikes-unalike on which equality within the justice system works is
one that depends on classification of the people, and was first derived by
Aristotle. Most western legal frameworks on equality are derived from this
principle and so was our Constitution’s Article 14. Read along with Article 15
of the Constitution that prohibits discrimination on the grounds of religion,
race, caste, sex, place of birth or any of them, Article 14 reflects how firstly
the state is supposed to treat different kinds of citizens in the same way, and
not treat different kinds of people differently when it comes to a common
standard of treatment. However, for purposes of social justice, people who
are classified similar are treated the same, and those classified differently
are treated differently, as in the case of reservations for disadvantaged
sections of society. Furthermore, Gurpreet Mahajan shows us in her work
Negotiating Cultural Diversity and Minority Rights in India, how multi-level
federalism is also practiced in India within the Constitutional fold to uphold
equality of minorities and in order to grapple with identity-based ethnic
conflict. Breaking away from contemporary theories of multiculturalism
that recommend self-governance of communities as a way to address such
conflicts, Mahajan recommends multi-level federations or sub-federations
instead as a more effective means to address minority rights in culturally
and territorially diverse regions. She also expands on the challenging
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issue of addressing linguistic equality in India where hundreds of different Equality : Sameness and
languages are spoken by various communities. Her central recommendation Difference
on this front is that emerging democracies such as India need to better
address linguistic diversity with respect, recognition and equal opportunities
to enter what she calls the ‘public arena’. Even though modern theories of
equality as written down in our Constitution may have arisen in the West,
we find that they have been heavily informed by specific experiences of the
non-West.
In the Aristotelian conception of equality, affirmative action which treats
unlikes-unalike on the basis of difference does not appear. Neither was it
able to solve the hierarchical relations between men and women. When the
concept of equality was being imagined in the West, women and men were
seen as being different on the basis of their sex, and hence, the Aristotleian
dictum could justify the different treatment met out to them. Women were
not simply seen as different but also inferior, which justified them having
no voting rights. When men and women do different jobs, they are simply
paid different on the unlikes being treated unalike model, even when the job
values are comparable. Further, the social sanctions and causes for women
and men taking up different jobs are not taken. Under this theory of equality
then, if someone is different i.e. if someone is coming from a different
group, they can not only be treated unequally but even less. The Suffragist
Movement (movement for women’s voting rights) that was launched in the
USA in the early twentieth century had argued against differentiation in the
legal system on the basis of sex, hence focusing on legal rights through the
ambit of sameness. However, even the suffragist movement failed to address
voting rights for black men and women, and thus equality was envisioned
only within the racial identity of whiteness. Much of western feminism in
its formative stages has suffered from a narrow lens of White and European
people. In the later twentieth century, black feminist and lawyer Kimberle
Crenshaw theorised ‘intersectional feminism’ to address social justice and
equality in terms of resisting marginalisation experienced by people who
belong to the intersections of multiple axes of power and social hierarchies,
such as class, race, gender, etc. Thus, a black woman living in the USA
would not only experience marginalisation on account of her being black,
but also on account of her being a woman and vice-versa. When applied
to the Indian context, intersectional feminism, caste becomes a prominent
category of stratification along with other more universally present axes of
marginalisation such as class or gender.
Joan W. Scott in her work, Deconstructing Equality versus Difference writes
that a central focus on sameness makes it appear as it is the only ground on
which equality can be demanded, even when feminist political ideas have long
been based on difference as well. With the rise of postmodernism in feminist
theorising, pluralities and diversities have taken precedence over unities and
universals, in other words, ‘difference’ takes precedence over ‘sameness’.
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Equality Particularly in American feminist theorisation and politics, ‘equality-versus-
difference’ has become a catchphrase and guiding principle. Scott argues that
the concepts of ‘equality’, ‘sameness’ or ‘difference’ were all past inventions
that feminists tended to borrow uncritically into their theory and politics.
These concepts were not based on realities that feminists primarily want to
fight for/against and thus, she argues for a thorough revision of all of these
concepts. She claims that ‘equality’, as described in the political theory of
rights that lies behind the claims of excluded groups for justice, means the
ignoring of differences between individuals for a particular purpose or in
a particular context. At the historical root of the meaning of equality lies
a ‘negative’; that is, it aims at eliminating a particular set of differences
in a particular time and place, and not all differences. This presupposes
different sets of people as ‘equivalent’ for a specific and articulated socio-
political purpose, but importantly, doesn’t consider them ‘identical’. Thus,
in this sense, equality can be considered the antithesis of inequivalence
and for purposes of democratic or constitutional citizenship, equivalence
has been measured or standardized differently in different times, whether
in terms of rights or freedom or treatment of people. Scott furthermore
argues that equality in its political meaning includes and depends on an
acknowledgment of the existence of difference. The sameness articulated
within this fold of equality is applied through an ‘identity’, such as ‘women’,
or when combined with an intersectional understanding, an identity can be
‘black women’. These identities are formed with an underlying concept of
both sameness, which defines what it means to be a ‘woman’ or a ‘black
woman’, and of difference, wherein it is claimed how they are different from
the identities that are higher up in corresponding social hierarchies, such as
‘men’. Thus, in terms of political strategy, equality has undergone radical
changes through time with ‘difference’ becoming a stronger component of
contemporary feminist debates.

Check Your Progress Exercise 4

Note: i) Use the space given below for your answer.

ii) See the end of the unit for tips for your answer.
1) How did the feminists understand the debate on sameness and
difference?
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5.5 LET US SUM UP

Equality has been one of the most difficult concepts to grasp within society.
Despite various theories given in the past, and in the present, the problem
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of inequality deeply pervades Western as well as Indian society. Scholars Equality : Sameness and
from the developing world have pushed theorists to recognize global Difference
inequalities such as between the developed and developing countries and
the discriminations arising from those. Understanding the idea of equality,
therefore, helps grapple with the concept of inequality that surrounds
one person. It is also important to understand equality as an essential and
enduring component of social justice that has formed the backbone of all
democracies in the world. The changing meanings of equality as arrived
from feminist debates in history are crucial to understand how it is applied
in contemporary political assertions.

5.6 REFERENCES

Crenshaw, Kimberle. “Demarginalizing the Intersection of Race and Sex:

A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory
and Antiracist Politics,” University of Chicago Legal Forum: Vol. 1989: Iss.
1, Article 8. pp. 139 – 167, Available at: [Link]
edu/uclf/vol1989/iss1/8
Fredman, Sandra. “Substantive Equality Revisited”. International Journal
of Constitutional Law, vol 14, no. 3, 2016, pp. 712-738. Oxford University
Press (OUP), doi:10.1093/icon/mow043.
Leyden, W. Von. (1985). Aristotle on Equality and Justice. Palgrave
Macmillan.
MacKinnon, Catharine A. “Sex Equality under The Constitution of India:
Problems, Prospects, and “Personal Laws””. International Journal of
Constitutional Law, vol 4, no. 2, 2006, pp. 181- 202. Oxford University
Press (OUP), doi: 10.1093/icon/mol001
Marx, Karl, and Friedrich Engels. (1848). Manifesto of the Communist
Party.
Sen, Amartya. (1992). Inequality Reexamined. Oxford: Oxford University
Press.
Stanford Encyclopedia of Philosophy, URL: [Link]
entries/equality/
Wolff, Jonathan. “Equality”. Oxford Handbooks Online, 2011. Oxford
University Press, doi: 10.1093/oxfordhb/9780199238804.003.0036
Scott, Joan W. “Deconstructing Equality-Versus-Difference: Or, the Uses
of Post-structuralist Theory for Feminism”, Feminist Studies, 14:1 (1988:
Spring) p.33 – 50

5.7 ANSWERS TO CHECK YOUR PROGRESS EXERCISES

Check Your Progress Exercise 1

1) Your answer should include the following

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Equality • Oxford dictionary definition
• Descriptive and prescriptive use of equality
• Some theoretical perspectives on equality
2) Your answer should include
• Aristotle’s concept
• Hobbes’ and Locke’s natural conceptualization
• Rousseau’s idea
• Marx’s conception

Check Your Progress Exercise 2

1) Your answer should highlight

• It is based on principles of equality
• Example from workplace
2) Your answer should include
• While one focuses at end result, the other focuses at the start
• Equality of outcome tackles discrimination better than equality of
opportunity

Check Your Progress Exercise 3

1) Your answer should include

• Articles 14 – 17 of Indian Constitution
• How they came to be known as equality rights through court
judgements

Check Your Progress Exercise 4

1) Your answer should include

• History of feminist theoretical understandings of ‘equality’
• The meanings of ‘sameness’ and ‘difference’ as applied
politically through time
• Examples from Indian Constitution

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