Striking a Blow against Affirmative Action in America

6 Jul 2023

Context:

Recently, the United States Supreme Court (SCOTUS) took a ground-breaking decision in ‘Students for Fair Admissions vs Harvard’.

SCOTUS deemed the race-conscious admission policies at Harvard and the University of North Carolina (UNC) as unconstitutional and violative of the Equal Protection.

Affirmative Action:

Affirmative action or positive action is a kind of action intended to promote the opportunities of defined minority groups within a society to give them equal access to that of the majority population.

Underpinning of the Verdict:

Identical Treatment: it emphasised that the equal protection clause is colour-blind, and the term “equal protection” means identical treatment.
- Thus, race-based affirmative action contravenes this promise.
Contraventions should have Compelling Goal: Any contravention of affirmative action could only be justified if the state has a compelling goal, and affirmative action is absolutely necessary to attain it.
- The state must articulate this goal clearly to enable judicial scrutiny.
Sunset Clause: The affirmative action policies should have a ‘sunset clause’.
- A sunset clause is a measure within a law, regulation or statute which provides that the law shall cease to have effect after a particular date, unless the law is extended by legislative action.
Eliminate Problematic Aspects: The affirmative action should not rely on racial stereotypes or disadvantage anyone based on race — two aspects it identified as problematic in this case.

Differences between the Indian and U.S. Constitutions:

(A) On the basis, how they treat Affirmative Action:

U.S. Constitutions

Indian Constitution

The U.S. Constitution is silent on it.
It prohibits only the denial of “equal protection”, leading to varied interpretations of this amorphous phrase depending on the sitting Justices.
Majority interpret it as color-blindness.
It means consciously treating historically-oppressed races differently.

It expressly allows affirmative action in favor of backward classes in matters of education (Article 15) and jobs (Article 16).
- Article 16 expressly permits “reservations” in jobs, something that is unique to the Indian Constitution.

India’s courts do not debate as to whether affirmative action is fundamentally permissible, for the Constitution conclusively answers that question.
In fact, this reservation provision was part of the original Constitution as enacted on January 26, 1950, unlike affirmative action in education which was introduced the next year through the First Amendment.

(B) On the notion of Equality:

Formal Equality in U.S.

Substantive Equality in India

It has a narrow view of equality and prevents the U.S. Courts from allowing broad-based race conscious measures.
The U.S. seeks to eliminate all distinctions based on race universally, the reason being equality cannot mean different things for different individuals.
This applies even for affirmative action that may be justified to undo the historic discrimination faced by African Americans or Hispanics (or other groups).
The measures which treat one race as distinct from another in any manner, including a preference in education, are viewed strictly and against equality.

It has a broader view of equality and facilitates Indian Courts to pass pro-reservation judgments, in sync with the constitutional mandate.
India, on the other hand, does not treat all distinctions of race or caste alike.
Certain classes such as the Scheduled Castes (SCs), Scheduled Tribes (STs) and Backward Classes who have faced discrimination in the past are not considered on a level field with others.
To help above mentioned classes, India helps them to achieve equal opportunities by providing the access to reservation.

(C) On the test for Constitutionality:

U.S. Constitutions	Indian Constitution
The U.S. has strict scrutiny of all measures that create distinctions based on race.	Indian courts have a very different standard to meet under Articles 15 and 16 of the Constitution.
A measure is constitutionally permissible only if it furthers a compelling state interest and is narrowly tailored to achieve such interest.	‘Education’ and ‘public employment’ are already enshrined in the Constitution as legitimate goals for reservation.
The only permissible state interest in the U.S. is the need for a diverse student body. Once this is established, it must be proved that the measure closely correlates to diversity.	The standard adopted by courts focuses on whether the class seeking reservation is socially and educationally backward, and inadequately represented.
This is a high standard that makes it extremely difficult for universities to devise admission programmes that are favorable to the minority race.	In employment, this requires proof of quantifiable data from the state.
Any broad measures are viewed with great caution so that non-minority candidates are not disadvantaged at the cost of minority.	If the above mentioned criterias are met, even broad reservation measures are constitutional and the interests of the non-minority are instead taken care of by capping reservations at 50%.

Is Indian reservation antithetical to equality?

As Justice K.K. Mathew explained in 1976, “the notion of equality of opportunity has meaning only when a limited good or, in the present context, a limited number of posts, should be allocated on grounds which do not a priori exclude any section of citizens of those that desire it.”
Thus, reservation is not antithetical to equality, but a tool that furthers equality.

Conclusion:

India’s constitutional mandate champions substantive equality and adopts a more reasonable test. Indian courts are unlikely to align with the SCOTUS’s Harvard ruling.
Courts have repeatedly sounded caution that foreign decisions should not be relied on without a proper appreciation of the context in which they were rendered.

Additional Information:

Idea of Reservation: William Hunter and Jyotirao Phule in 1882 originally came up with the idea of caste-based reservation system.

Commission:

After independence, initially reservations were provided only for SCs and STs. Later, Other Backward Classes (OBCs) were included in 1991 on the recommendations of the Mandal Commission.
- The commission was formed to determine the criteria for defining India’s “socially and educationally backward classes” and to recommend steps to be taken for the advancement of those classes.
In 2019, by the 103rd Constitutional Amendment Act, the provision of 10% EWS (Economically Weaker Section) quota came up.

Constitutional Provisions for Reservation:

Article 15(4) and 16(4): Reserve seats in government services for the members of the SCs and STs.
Article 330 and 332: Specific representation through reservation of seats for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
Article 243D: Provides reservation of seats for SCs and STs in every Panchayat.
Article 233T: Provides reservation of seats for SCs and STs in every Municipality.
Article 335: The claims of STs and STs shall be taken into consideration constituently with the maintenance of efficacy of the administration.
77th Constitutional Amendment Act, 1995: Added a new clause (4A) in Article 16 to enable the government to provide reservation in promotion.
81st Constitutional Amendment Act, 2000: Inserted Article 16 (4B), nullifying the ceiling of fifty percent reservation on total number of vacancies of that year.
85th Constitutional Amendment Act, 2001: To provide consequential seniority to SC and ST candidates promoted by giving reservation.