Comparison of Indian Constitution with Others

Context: South Africa’s ruling African National Congress (ANC) faced a search for allies to help it form a new government on Saturday after it lost its three-decade-old absolute majority in a watershed election.

Comparison of the Indian constitutional scheme with that of other countries.

So let us briefly go through the comparison: 

Aspect	Indian Constitution	South African Constitution
Government	- Structure: Bicameral Parliament (Lok Sabha and Rajya Sabha)	- Structure: Bicameral Parliament (National Assembly and National Council of Provinces)
	- Executive: President (ceremonial) and Prime Minister (executive)	- Executive: President (both head of state and government)
	- Legislative Process: Complex, with significant involvement of both houses and various committees	- Legislative Process: Involves both houses, with emphasis on representation and cooperation across provinces
Federation	- Division of Powers: Enumerated in the Union, State, and Concurrent lists (Seventh Schedule)	- Division of Powers: Powers shared across national, provincial, and local governments
	- State Autonomy: States have significant legislative and executive autonomy	- Provincial Autonomy: Provinces have limited autonomy, with strong central oversight
Rights	- Fundamental Rights: Include equality, freedom, right against exploitation, cultural and educational rights, etc.	- Bill of Rights: Comprehensive, covering civil, political, economic, social, and cultural rights
	- Directive Principles: Non-justiciable guidelines for state policy aimed at social and economic democracy	- Justiciability: Socio-economic rights are enforceable by the judiciary
Judiciary	- Supreme Court: Apex court with wide appellate jurisdiction and authority over constitutional matters	- Constitutional Court: Apex court for constitutional issues, with a strong role in protecting the Bill of Rights
	- Appointment of Judges: Collegium system involving senior judiciary members	- Appointment of Judges: Judicial Service Commission, ensuring a transparent and inclusive process
	- Judicial Review: Robust power to review laws and executive actions for constitutionality	- Judicial Review: Equally robust, with the Constitutional Court having the final say on constitutional matters

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.

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 USA	Notion 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.

Context: The research paper by Ruben B Mathisen compares the influence of the affluent on policy-making in Norway and the United States. The clear result of the study is that in a social democracy like Norway, the link between money and politics was much weaker than in the U.S.

A comparison of the democracy of Norway and the U.S

Comparison Factors	Norway	United States
Policy-making process	Targeted schemes: ‘Targeted schemes’ like the ones we have in India which only benefit the so-called ‘needy’ and tend to provoke resentment among the ‘non-needy’ about how their tax money is being frittered away in ‘freebies’.	Public policy decidedly favoured the preferences of the affluent, at the expense of the poor and the middle classes
Economic inequality	Low levels of income inequality	High levels of income inequality
Universal welfare schemes	‘Universal’ welfare measures: ones that benefit every citizen such as free education and free public healthcare. universality of social benefits has the effect of ensuring their legitimacy and endorsement across classes, including the affluent.	‘Universal’ welfare measures: ones that benefit every citizen such as free education and free public healthcare. the universality of social benefits has the effect of ensuring their legitimacy and endorsement across classes, including the affluent.
Wealth redistribution	Norway has one of the lowest levels of income inequality in the world, which essentially means “less of a resource advantage for the affluent to be used (in whichever way possible) to influence politics	Low levels of wealth redistribution
Political party funding	Parties get two-thirds of their financing from state subsidies and political advertising on television is banned	Historically strong trade unions have been able to influence economic and social policy
	Political advertising on television is banned in Norway, making the entire campaign process less vulnerable to private wealth	Television advertising is a huge campaign expense in American elections
Trade unions	Trade unions are no longer as politically powerful as they once were	Trade unions are no longer politically powerful as they once were
Energy reserves	Vast reserves of oil and natural gas have made it possible for the government to maintain generous welfare transfers while imposing lower tax rates	No such significant reserves of natural resources
Wealth of politicians	The country’s political class is not particularly wealthy. The median wealth among Norwegian MPs is zero, according to tax records, which means that it is unlikely for policies to be biased in favour of the rich just because the politicians are themselves rich.	There are laws requiring proportionate representation of women in government institutions. Since women on average have lower incomes than men, their higher levels of representation resulted in greater political influence for women, which, in turn, got translated into greater political influence for lower-income citizens.
Gender inclusiveness	There are laws requiring proportionate representation of women in government institutions. Since women on average have lower income than men, their higher levels of representation resulted in greater political influence for women, which, in turn, got translated into greater political influence for lower-income citizens.	No such institutional mechanism to engender the governance process.

The Norway example demonstrated two things

• one, in a welfarist social democracy with low inequality, education was a stronger predictor of responsiveness than income; 
• and two, restricting how money can be used to influence elections, and strengthening countervailing forces (such as trade unions) might change the balance of power. 

The authors however remark, that initiating such changes would be most difficult in precisely those democracies that need them the most, because it is in those countries that the affluent already wield the greatest influence on policy.

Learnings for a constitutional democracy all over the world based on the above study

• Strong social welfare programs can lead to greater social equality and a higher standard of living for citizens.
• A decentralized political system with strong state-level autonomy can lead to greater responsiveness to local needs and concerns.
• A robust system of checks and balances between the executive, legislative, and judicial branches of government can prevent the concentration of power in any one branch.
• A high degree of political transparency and accountability can help to maintain public trust in government institutions.
• Political polarization and a lack of willingness to compromise can impede progress on important policy issues.
• A commitment to protecting individual rights, such as freedom of speech and the press, is essential for a healthy democracy.
• Economic policies that prioritize the interests of corporations and the wealthy can exacerbate inequality and undermine democratic values.
• The presence of a strong civil society, including active NGOs and citizen advocacy groups, can help to hold politicians accountable and ensure that the needs of all citizens are represented.
• A well-functioning electoral system, including fair and accessible voting procedures, can help to ensure that the voices of all citizens are heard.
• A culture of civic engagement and political participation can strengthen democracy and promote a more informed and engaged citizenry.