‘Indian and US constitutions are starkly different regarding affirmative action’ | Photo Credit: AFP
In an unprecedented decision on June 29, 2023 fair admissions vs harvard studentsUnited States Supreme Court (SCOTUS) Accept The race-conscious admissions policies at Harvard and the University of North Carolina (UNC) have been called unconstitutional and a violation of the Equal Protection Clause in the Fourteenth Amendment.
As Chief Justice John Roberts said, “To end racial discrimination is to end it all.” The decision has profound implications for affirmative action programs where ‘race’ has historically been a factor in promoting diversity in college admissions, such as in Texas and Michigan. Many believe the Harvard decision now makes affirmative action almost impossible in the US
SCOTUS outlined its decision for four reasons. First, it emphasized that the Equal Protection Clause is color-blind, and that the term “equal protection” implies equal treatment. Thus, race-based affirmative action violates this promise. Second, it affirmed that any such violation can only be justified if the state has an essential goal, and affirmative action is absolutely necessary to achieve this. The state should clearly articulate this goal to enable judicial scrutiny. The court found Harvard and UNC’s stated objectives of “training future leaders” to be admirable but vague. Third, the Court reiterated an earlier ruling that affirmative action policies should contain ‘sunset clauses’. However, both Harvard and UNC lacked it. Finally, the court held that affirmative action should not rely on racial stereotyping or harm anyone based on race – two aspects deemed problematic in this case.
Since Indian courts often resort to US decisions, and given the shared history of discrimination based on race and ethnicity (India and the US), it is relevant to examine the implications of this decision for India. Can this ‘reservation’ be either reduced or significantly reduced?
two different constitutions
The Indian and American constitutions differ from each other regarding affirmative action. The US Constitution is silent on this, barring only the denial of “equal protection”, leading to various interpretations of this amorphous phrase depending on current judges. For the majority today, it means the same thing it did in the 19th century: color-blindness. For dissent, it means intentionally treating historically oppressed castes differently.
Indian constitution is more clear, thanks to its makers. It explicitly allows for affirmative action in favor of backward classes in matters of education (Article 15) and jobs (Article 16). Article 16 explicitly allows for “reservation” in jobs, which is unique to the Indian Constitution. In fact, this reservation provision was part of the original constitution enacted on January 26, 1950, as opposed to affirmative action in education, which was introduced the following year through the First Amendment. India’s courts regularly debate a wide range of questions: What percentage of seats or posts can the state reserve? How should the beneficiary classes be identified? However, unlike in the US, courts in India do not debate whether affirmative action is fundamentally acceptable, as the Constitution conclusively answers that question.
Formal vs. Actual Equality
Another difference is the notion of equality that forms the foundation of affirmative action in both jurisdictions. The reason America wants to universally eliminate all discrimination on the basis of race is because equality may not mean different things to different individuals. It also applies to affirmative action that can be justified to address historical discrimination faced by African Americans or Hispanics (or other groups). Thus, measures that differentiate one caste from another in any way, including priority in education, are viewed strictly and against equality. This narrow view of equality is called formal equality and it prevents US courts from allowing broad-based race conscious remedies.
On the other hand, India does not treat all discrimination of race or caste equally. Certain classes such as the Scheduled Castes, Scheduled Tribes and Backward Classes, who have faced discrimination in the past, are not considered at par with others. To help them get equal opportunities, it is necessary that they get access to reservation. As Justice KK 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 are to be allocated on grounds which are not available to any class of citizens Do not exclude from priority. of those who desire it.” Thus, reservation is not antithetical to equality, but a tool that furthers equality. This is called the basic notion of equality and it facilitates Indian courts to pass pro-reservation judgments in line with the constitutional mandate. In this context, a decision like the Harvard University case is unimaginable for Indian courts.
test for constitutionality
In addition, the test to determine whether affirmative action or reservation is constitutional varies greatly. In the United States, all measures that create discrimination on the basis of race are subjected to strict scrutiny. This means that a measure is constitutionally permissible only if it advances a compelling state interest and is narrowly designed to achieve such an interest. The only acceptable state interest in America is the need for a diverse student body. Once this is established, it must be proved that the measure is closely related to diversity. This is a high standard that makes it extremely difficult for universities to design admission programs that are minority friendly. Any sweeping measure is viewed very carefully so that non-minority candidates are not disadvantaged at the expense of the minority.
In stark contrast, Indian courts have a very different standard to those found under Articles 15 and 16 of the Constitution. ‘Education’ and ‘public employment’ are already enshrined in the Constitution as legitimate goals of reservation. Thus, the standard adopted by the courts focuses on whether the class seeking reservation is socially and educationally backward and is inadequately represented. In employment, this requires proof of quantitative data from the state. Even if these two criteria are met, the comprehensive reservation measures are unconstitutional and instead the interests of non-minorities are taken care of by limiting the reservation to 50%.
Given India’s constitutional mandate, which advocates substantive equality and adopts a more fair test, Indian courts are unlikely to engage with SCOTUS’s Harvard decision. Courts have repeatedly warned that reliance should not be placed on foreign decisions without due appreciation of the context in which they were presented. However, the emphasis on a sunset clause could potentially have resonance, similar to the Indian Supreme Court’s suggestion in the Economically Weaker Sections (EWS) reservation case. The receptivity of Parliament to the idea remains to be seen.
Shivani Vij and Shrutanjay Bhardwaj are advocates in the Supreme Court of India