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The U.S. Supreme Court struck down race-conscious student admissions programmes currently used at Harvard University and the University of North Carolina.
Comparison of affirmative actions in India and U.S.
The Indian and U.S. Constitutions are poles apart on how they treat affirmative action.
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.
The Indian Constitution is more clear.
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.
Formal equality:(U.S.)
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).
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 a formal equality and prevents U.S. courts from allowing broad-based race conscious measures.
Substantive equality: (India)
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.
To help them to achieve equal opportunities it is imperative that they have access to reservation.
Reservation is not antithetical to equality, but a tool that furthers equality. This is called a substantive notion of equality.
Substantive notion of equality facilitates Indian Courts to pass pro-reservation judgments, in sync with the constitutional mandate.
Test for constitutionality: (U.S.)
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.
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.
This is a high standard that makes it extremely difficult for universities to devise admission programmes that are favourable to the minority race.
Any broad measures are viewed with great caution so that non-minority candidates are not disadvantaged at the cost of minority.
In stark contrast, Indian courts have a very different standard to meet under Articles 15 and 16 of the Constitution.
‘Education’ and ‘public employment’ are already 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%.
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