Striking a blow against affirmative action in America

Context: In a ground-breaking decision, on June 29, 2023, in Students for Fair Admissions vs Harvard, the United States Supreme Court (SCOTUS) deemed the race-conscious admission policies at Harvard and the University of North Carolina (UNC) as unconstitutional and violative of the Equal Protection Clause in the Fourteenth Amendment.

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Judgement of US Supreme Court 

  • Chief Justice John Roberts stated, “Eliminating racial discrimination means eliminating all of it.”
  • SCOTUS justified its verdict with four reasons.
    • First, 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.
    • Second, it affirmed that any such contravention 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. The court found Harvard and UNC’s objectives, such as “training future leaders”, as commendable but vague.  
    • Third, the Court reiterated an earlier ruling that affirmative action policies should have a ‘sunset clause’. However, both Harvard and UNC lacked this.  
    • Lastly, the court held that affirmative action should not rely on racial stereotypes or disadvantage anyone based on race — two aspects it identified as problematic in this case.

Concept of Formal Equality and Substantive equality 

Formal Equality 

  • Formal Equality is the view that formal rules should not exclude individuals from acheiving certain goals by making reference to personal characteristics that are arbitrary, such as race, socio-economic class, gender, religion and sexuality. 
  • In addition, Formal Equality forbids reference to proper names in formal rules
  • 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). 
  • Thus, measures which treat one race as distinct from another in any manner, including a preference in education, are viewed strictly and against equality. This narrow view of equality is called formal equality.

Substantive equality 

  • This Concept of equality focuses on the outcomes and impacts of laws and policies. 
  • Substantive equality goes far beyond creating formal legal equality for disadvantaged sections (where all are equal under the law) and means that governments are responsible for the impact of laws. 
  • This requires governments to tailor legislation to respond to the realities of race, caste, sex, classes etc.
  • Striving for substantive equality also places a responsibility on governments to implement laws, through responsive governance and functioning justice systems that meet disadvantage sections’ needs. 
  • It recognizes that because of historic discrimination, disadvantage sections of society do not start on an equal footing.

Comparison of Affirmative Actions in India and USA 

Constitutional Provision in USA 

  • The U.S. Constitution is silent on it, prohibiting only the denial of “equal protection”, leading to varied interpretations of this amorphous phrase depending on the sitting Justices
  • To today’s majority, it means exactly what it meant in the 19th century: colorblindness. To dissent, it means consciously treating historically oppressed races differently.

Constitutional Provision in India

  • The Indian Constitution expressly allows affirmative action in favour 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.
  • 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. 

Difference between the notion of equality in India and US

Notion of equality in USANotion of equality in India
US courts debate as to whether affirmative action is fundamentally permissible under the US constitution India’s courts routinely debate the granular questions: what percentage of seats or posts can the state reserve? How should the beneficiary classes be identified? India’s courts do not debate as to whether affirmative action is fundamentally permissible, for the Constitution conclusively answers that question.
US follows a narrow view of equality called a formal equality that prevents U.S. courts from allowing broad-based race conscious measures. India follows substantive notion of equality and that facilitates Indian Courts to pass pro-reservation judgments, in sync with the constitutional mandate.
The U.S. seeks to eliminate all distinctions based on race universally, the reason being equality cannot mean different things for different individuals.India, on the other hand, does not treat all distinctions of race or caste alike. Certain classes such as the Scheduled Castes, Scheduled Tribes and Backward Classes who have faced discrimination in the past are not considered on a level field with others.
Reservation is considered as antithetical to equality, but a tool that furthers equality.Reservation is not antithetical to equality, but a tool that furthers equality.

Test of constitutionality of Affirmative actions in US 

  • The U.S. has strict scrutiny of all measures that create distinctions based on race. 
  • This means a measure is constitutionally permissible only if it furthers a compelling state interest and is narrowly tailored to achieve such interest
  • Any broad measures are viewed with great caution so that non-minority candidates are not disadvantaged at the cost of minority.

Test of constitutionality of Affirmative actions in India

  • Under Art 15 and Art 16, ‘Education’ and ‘public employment’, respectively are enshrined in the Constitution as legitimate goals for reservation.
  • Thus, the standard adopted by courts focuses on whether the class seeking reservation is socially and educationally backward, and inadequately represented.
    • In employment, this requires proof of quantifiable data from the state. 
  • If these two criteria 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%.

Supreme Court of India have repeatedly sounded caution that foreign decisions should not be relied on without a proper appreciation of the context in which they were rendered. However, the emphasis on a sunset clause, akin to the Indian Supreme Court’s suggestion in the Economically Weaker Section (EWS) Reservations case, could potentially resonate.

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