Answer:

Introduction:

Affirmative action, also known as reservation in India, is a policy where an individual’s color, race, sex, religion or national origin are taken into account to increase opportunities provided to an underrepresented part of society. The US and India, two of the world’s largest democracies, have both adopted forms of affirmative action, but their constitutional treatments and interpretation of equality vary significantly.

Body:

Affirmative Action in the US Constitution:

• Legal Basis: 
  • In the US, the constitution does not explicitly mention affirmative action.
  • However, it has been addressed through a series of judicial interpretations of the Equal Protection Clause of the 14th Amendment, which states that no state shall deny any person within its jurisdiction the equal protection of the laws.
• Key Judgments and Controversies:
  • The US Supreme Court has permitted narrowly tailored use of race in admissions processes to achieve a diverse student body (Regents of the University of California v. Bakke, 1978).
  • However, these policies must pass the test of ‘strict scrutiny,’ which necessitates that any racial classification be justified by a compelling governmental interest, be narrowly tailored to further that interest, and be the least restrictive means to further this interest.
  • Despite these rulings, affirmative action remains a contentious issue. 
  • For instance, in the case of Students for Fair Admissions v. Harvard, allegations of discriminating against Asian-Americans in the admission process are under scrutiny.

Affirmative Action in the Indian Constitution:

• Legal Basis: 
  • Unlike the US, the Indian constitution explicitly provides for affirmative action in Articles 15(4), 16(4), and 46. 
  • These articles permit the state to make special provisions for the advancement of any socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes.
• Implementation and Controversies:
  • The policy of reservation in India has aimed to rectify historical injustice and discrimination suffered by these groups by reserving seats in educational institutions, government jobs, and even legislatures.
  • Notably, in the landmark case of Indra Sawhney v. Union of India (1992), the Supreme Court held that reservations could not exceed 50%, except in extraordinary situations, to maintain the balance between equality of opportunity and social justice.

Differences in the Notion of Equality:

US Approach:

• In the US, the understanding of equality tends to be more centered on ‘formal equality’ or ‘equality of opportunity,’ ensuring that all individuals have an equal chance without any discrimination. 
• Affirmative action policies are seen as exceptions, permitted under specific conditions.
• For example, Grutter v. Bollinger (2003): The US Supreme Court upheld an affirmative action policy that considered race as one of many factors in college admissions, validating diversity as a compelling educational benefit.

Indian Approach:

• India, on the other hand, leans towards ‘substantive equality’ or ‘equality of outcome,‘ acknowledging the fact that historical and social disadvantages have prevented certain groups from competing on an equal footing. 
• Hence, affirmative action policies are seen as tools to level the playing field.
• For instance, The Mandal Commission (1979-1980): Recommended 27% reservation for Other Backward Classes (OBCs) in civil posts and services, exemplifying India’s commitment to achieving ‘equality of outcome.’ Implementation sparked widespread protests but affirmed the importance of affirmative action.

Conclusion:

Affirmative action in both the US and Indian constitutions arises from the aspiration of promoting equality, albeit with different interpretations. While the US has adopted a more cautious approach focusing on individual rights and equality of opportunity, India has embraced a broader, more inclusive approach considering societal structures and equality of outcome. These differences reflect the unique social, historical, and political contexts of these nations and their continuous pursuit of an equitable society.

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