II-INTERNAL ASSIGNMENT

RESEARCH PAPER
AFFIRMATIVE ACTION FOR THE BLACKS IN THE U.S.A. AND THE
UNTOUCHABLES IN INDIA- COMPARISON, SCOPE AND RELEVANCY

MADE BY: RIYA GUPTA

PRN: 16010125131
COURSE: B.A. LL.B (Hons.)
DIVISION: ‘B’

SUBMITTED TO: Dr. APARAJITA MOHANTY

PROF. VARUN SHARMA
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

INTRODUCTION

“Dalit Youth Murdered by 2 upper caste friends for touching their food”1, or “George Floyd:
Minnesota clashes over death in police custody”2 These are some of the recent headlines
flashing on our phones, social media and daily newspapers.

However, these headlines are not just a report regarding commission of a violent act or a
crime, it’s a report regarding commission of violent criminal act against the discriminated,
minority and disadvantaged section of the society.

These incidents are not a current phenomenon and has been a matter of grave significance in
the Nation’s socio-political scenario.

Thus, to eradicate these discriminatory actions meted to the minority section of the society,
numerous nations have implemented Affirmative Action policy and provided it legislative
backing by inserting a provision to this effect in the Constitution or through judicial
precedent or a legislative enactment.

The present paper is an attempt to elaborate on the Affirmative Action Policy adopted by
India and the United States of America, the jurisprudential theories of Affirmative action and
equality, the similarities and influences the affirmative action policies have on each other, the
landmark judgments which further uphold the affirmative action and the relevance of the
programme in the 21st century.

Key Words: Affirmative Action, Equality, Jurisprudence and Constitutionalism

STATEMENT OF PROBLEM:

Affirmative Action Policy/Program has evolved in accordance with the socio-political

circumstances prevailing during the post-independence era and is considered as a significant
measure to curb discriminatory practices inflicted upon the disadvantaged and minority
section of the society, which is constitutionally recognised and judicially upheld. Though the
rationale, jurisprudential theory and constitutionalism applicable to the implemented
Affirmative Action Policy of India and the United States of America may differ to some
extent, there exist little analytical research on, whether the constitutional and jurisprudential

1
The New Indian Express, 9th December, 2020. Https://Www.Newindianexpress.Com/Nation/2020/Dec/09/Mp-
Shocker-Dalit-Youth-Killed-By-Two-Upper-Caste-Friends-For-Touching-Their-Food-2233936.Html
2
BBC News, 28th May, 2020. Https://Www.Bbc.Com/News/World-Us-Canada-52817097
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

ideology on the basis of which the affirmative action policy was enacted and implemented
still holds relevancy during the 21st century or is there a need to change the Affirmative
Action Policy?

The researcher, therefore, considers it crucial to provide an elaborate upon the historical
context, the affirmative action of USA and India, Judicial Pronouncement, Analysis
Jurisprudential basis of Affirmative Action in order to determine whether the Affirmative
Action Plan formulated in the 20th Century holds relevancy in the 21st Century?

LITERATURE REVIEW:

Affirmative Action in India and the United States: The Untouchable and Black Experience
by Varn Chandola3:

The Above-mentioned research paper is an informative and an analytical research paper

focused on the untouchable and black experience, thereby comparing the affirmative action
policies enacted and implemented in the two countries. The paper also addresses the
influence of India on the affirmative action policy on U.S.A. and vice versa.

Research gap – The paper fails to provide a coherent comparison and also does not take into
consideration the current applicability of the said affirmative action policy and the
drawbacks/positive impact of the policy.

Affirmative Action in India and the United States, Ashwini Deshpande.4

The above-mentioned research paper is an extensive research paper which focuses on the
historical context under which the Affirmative Action was formulated and enacted, the
arguments for and against the Affirmative Action Policy and the Comparison between the
Affirmative Action policy of the two nation. The research paper is not only theoretically
informative, but only statistically informative as it provides statistical facts about the growth
that has achieved through the implementation of the Affirmative Action.

Research Gap: The Research Paper fails to provide recommendations and solutions for the
drawbacks identified by the researcher with respect to the Affirmative Action Program.

3
Vol. 3, 1992. https://mckinneylaw.iu.edu/iiclr/pdf/vol3p101.pdf.
4
Equity & Development World Development Report 2006 Background Papers Revised: January 2005.
http://www.piketty.pse.ens.fr/files/Deshpande2006.pdf
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

Affirmative Actions In India And U.S.: A Challenge To Reservation Policy In India-

Bineet Kedia5

The above- mentioned research paper focuses on the Affirmative Action policies as adopted
in India and U.S.A and thereby provides a comparison between the two.

Research Gap: The research paper however fails to provide any comprehensive analysis and
also does not state the relevancy of the said action in the current scenario.

RESEARCH QUESTION:

Is the Affirmative Action policy adopted by India and the United States of America still holds
relevancy in the 21st century?

RESEARCH OBJECTIVE:

The current research paper aims to explain the rationale behind adopting and implementing
affirmative action policies while substantiating it with the jurisprudential theories and further
analysing it by elaborating the landmark judicial precedents and thereby attempting to
understand its applicability and relevancy in the current scenario, i.e., the 21st century.

What is Affirmative Action?

India and U.SA. have had a long history of discrimination based on caste and race,
respectively. In order to compensate the discriminated section of the society for the
discriminatory atrocities inflicted upon them in the past socio-political setting of a Nation,
these countries adopted Affirmative Action as a tool to reduce and eradicate the
discriminatory approach towards such disadvantaged and socially excluded section of the
society thereby giving them an equal rather a more advantageous opportunity to seek
representation in various spheres of socio-political and economic setting of the Nation, such
as in the education sphere, Government job sphere, et cetera.

Thus, Affirmative Action could be understood as a measure formulated, adopted and

implemented by the Nations in order to extend and guarantee a wider and bigger

5
International Journal of Law and Legal Jurisprudence Studies, Universal Multidisciplinary Research Institute
Pvt Ltd., ISSN:2348-8212 Volume 2 Issue 1. http://ijlljs.in/wp-content/uploads/2015/01/AFFIRMATIVE-
ACTIONS-IN-INDIA-AND-US.pdf.
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

Fundamental right, i.e. Right to Equality and Right to Life and Liberty, by ensuring equal
representation, equal opportunities and judicial mechanism to enforce the Right to Equality.

Though, both India and U.S.A are the nations who have been a victim of the instillation of
this deep-rooted problem called discrimination of a particular section of the society, it is
pertinent to note that, these two differ significantly on the basis of various considerations,
such as: the group of society which were discriminated upon, the reason for which such
discriminatory actions were meted upon them, the manner in which such discriminatory
actions were meted upon them et cetera.

Why Affirmative Action in India and the U.S.A.?

The Researcher considers it pertinent to elaborate on the historical context within which these
discriminatory practices were adopted, implemented and made a norm in the society, in order
to better understand the need for the formulation and implementation of Affirmative Action
in both India and the United States of America.

The caste-based discrimination in India is a result of the varna system, as mandated by the
religious scriptures which eventually translated into a hierarchical structure based on caste on
the basis of which sections of the societies were represented and identified and accordingly
given preferential or discriminatory treatment and this ultimately led to the Government
recognising this as a discriminatory practice towards which an Affirmative Action must be
formulated and implemented.

Traditionally, according to the varna system, the society was divided into; The Brahmins, the
kshatriyas, the Vaishyas and the Shudras. Accordingly, the Shudras was a class which was
recognised as a lower-caste and they were restricted to employment in petty labor and other
occupations which were considered as inferior by the upper caste section of the society.6

It is important to understand that in the Indian Context, the segregation on the basis of rank
was guided by religion initially, i.e. dharma, wherein strict social codes and sanctions were
prescribed thereby mandating the code of conduct, custom to be followed, occupation to be
practiced were prescribed,7which at a later period of time attained a more complex structure
6
Anoop C. Chandola, THE WAY TO TRUE WORSHIP: A POPULAR STORY OF HINDUISM, Jan. 18,
1991.
7
These Rules Of Segregation Were Supported By The Rationale That Because Untouchables Were Considered
A Source Of Physical And Spiritual Pollution, They Had To Be Kept At As Far A Distance Away As Possible.
Edward Harper, Ritual Pollution As An Integrator Of Caste And Religion, In RELIGION IN SOUTH ASIA
(Edward Harper Ed., 1964);
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

and was replaced by the jati system wherein the classification of the basis of occupation
distinguished and numerous jatis were formed on the basis of region and were not determined
primarily on the basis of the Occupation performed.

Additionally, there are numerous Tribal Communities, i.e., the Adivasis, which have a distinct
language, lifestyle, tradition and custom, thereby excluding them from the Hindu religion.

Whereas, in the United States of America, discrimination of the basis of colour was a cause
and result of Slavery, implemented during the post-civil war era, on colonisation.8

Discrimination on the basis of colour was made in accordance with the Black codes and later,
Jim Crow Laws and was practiced till late 20th century.9

The Black Codes restricted the people of colour from practicing an occupation other than that
of menial nature.10 While, under the Jim Crow Laws, the Blacks were segregated in a
different neighbourhoods and access to public facilities such as public transport, schools,
place of worship was restricted and allowed under the pretence of certain conditions.11

The underlying principle behind such discriminatory practice and mandate was the
presumption of white supremacy over the blacks. The Supreme Court in the case of, Plessy v.
Ferguson,12 upheld the Jim Crow Laws wherein it stated that the maintenance of separate
facilities for the blacks and whites did not violate the 13 th or the 14th Amendment of the
Constitution. The court further observed that, just because the blacks were not allowed to
cohabitate in the same neighbourhood as the white, it does not prima facie signal inequality
and both the races were nevertheless equal.13

Thus, though the institutions of discrimination differed in the historical context of India and
the United States of America, the manner of discrimination was indeed very similar to each
other and it is safe to say, that though, both the Nations have drastically different cultural and
historical context, the sub-context, i.e., discriminatory practices and mandate were very
similar to one another and both the sections of the Society carried a “badge of servitude.”14

8
GEOFFREY STONE ET AL., CONSTITUTIONAL LAW 435-37 (1986)
9
C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 144-147 (3d Ed. 1974)
10
GEOFFREY STONE ET AL., CONSTITUTIONAL LAW, (1986), Pg. 445.
11
C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 144-147 (3d Ed. 1974)
12
163 U.S. 537 (1896).
13
Ibid.
14
Plessy V. Ferguson, 163 U.S. 537, 562 (1896).
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

JURISPRUDENTIAL THEORY FOR AFFIRMATIVE ACTION:

Though the Constitution of India has made express provisions with respect to Affirmative
Action while American Apex Court has upheld the Affirmative Action Policy to be
constitutionally valid, the current topic of this research paper is not devoid of criticism and
debate, since the Affirmative Action plans goes against the basic tenets of equality such as
merit, even handedness and indifference towards ascriptive characteristics such as caste, race
et cetera. Therefore, the researcher considers it important to discuss certain jurisprudential
arguments and provide analyse their theoretical implications, in order to determine a much
collaborative answer to the research question.

 Merit Argument:

The principles of Merit dictate that the social benefits shall be provided on the basis of
natural or acquired merits and not on preferential basis. Therefore, admission to an
educational institution or recruitment to a job shall be based on merit as it is an adequate
parameter to determine the eligibility, since merit is objective and easier to be determined and
has no relation to the personal characteristics of an individual.15

However, the researcher would like to put forth that the argument in itself is flawed, as what
constitutes Merit, is per se subjective rather than objective. What is conceived as Meritorious
depends largely on the social objective, value, need for achievement et cetera, 16 and what
constitutes merit for one may not constitute merit for another.

 Rights Argument:

A complex argument in itself, the Rights Argument claims that a preferential treatment is
itself violative of the very tenet of equality as this denies equality, which is a right of every
individual irrespective of the class, caste, race et cetera and is available to all the individual in
their individual capacity and not because they belong to a certain class or caste or race and
therefore affirmative action which grants preferential treatment to an individual is violative of
right to equality.

The same argument was upheld in the case of Bakke, concerning ‘reverse discrimination’
wherein the Supreme Court of U.S.A did away with the quota system. Prof. Dworkin blasts

15
V.C. Mishra, Bar Council of India Review, Vol XVII, New Delhi 1990
16
M.P.Singh, Reservation Crisis in India (Ed) V.C.Mishra, Universal Book Traders, New Delhi, 1991
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

out the argument. Commenting on Bakke’s claim that he was denied a seat in a medical
school at Davis only because he was white and that he did not chose to be born as white, he
says “It is true that blacks or jews do not choose to be blacks or jews. But it is also true that
those who score low in aptitude or admissions tests do not choose their levels of
intelligence.” 17

Surely, he would have been given admission if he were the black. But it is also true, and in
exactly the same sense, that he would have been accepted if he had been more intelligent or
made a better impression in his interview, or, in the case of other schools, if he had been
younger when he decided to become a doctor. And so he concludes that Allan Bakke is being
sacrificed because of his race only in a very artificial sense because of his level of
intelligence, since he would have been accepted if he were more clever than he is. In both
cases he is being excluded not by prejudice but because of a rational calculation about the
socially most beneficial use of limited resources for medical education.18

However, the researcher believes that if the criteria of caste or race is done away with, with
regards to employment and admission, the backward oppressed class would be deprived of
the participatory opportunities necessary for them in order to be instilled in the social pattern
of the Country. But the same, should be subject to the situation and circumstances and should
change with the betterment of their status.

CONSTITUTION, AFFIRMATIVE ACTION, JUDICIAL DECISIONS, ANLYSIS –

INDIA:

India has always been a rich and diverse land, but this diversity has been the root-cause of
discrimination and therefore, post-independence, the Government aimed at channelling this
diversity in such a manner that would fulfil the bigger criteria of Right to Equality, as
guaranteed under the Constitution of India.

Thus, the Indian Government, post-independence recognised and addresses Equality as the
central value in context of evident, predominant practices of inequality and discrimination.19

17
Amarpal Singh, Affirmative Action Programme: A Comparative Study of India and U.S., EUROPEAN ACADEMY
OF LEGAL THEORY BRUSSELS, 2003.
http://www.dhdi.free.fr/recherches/etudesdiverses/memoires/amarthesis.pdf.
18
V.C.Mishra’s Reservation Crisis in India, Universal BookTraders, New Delhi, 1991.
19
Marc Gallanter, Law And Society In Modern India, Oxford University Press, New Delhi, 1990, P.185.
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

Therefore, the Government enacted multiple constitutional safeguards in the form of Policy
for Compensatory Discrimination i.e., Affirmative Action Policies, in order to ensure
equality, which have protection and compensation as it’s very innate element and ones which
would be required to curb the systemic and systematic oppression suffered by the lower caste
of the society. These policies, sanctioned by Constitutional Provisions do not adhere to the
tenets of equality.20

The multiple Constitutional safeguards and policies can be broadly categorised into; Firstly,
Reservations which shall ensure equal representation and access to positions of significance,
such as membership of the Parliament, Government Jobs, Schools and Colleges et cetera,
Secondly, Protective measures implemented to facilitate the accessibility to the First
Category of safeguards, i.e. the Reservations by way of scholarships, grants, funding, loans et
cetera and Thirdly, Stringent specific legislation aimed at curbing untouchability by
penalising the activities promoting untouchability and forced labour.

 Reservation:

The Constitution of India recognises certain sections of the Societies as minority,

disadvantageous and victims of discrimination in the socio-political and economic scenario.
These sections of the society are primarily, scheduled tribes and scheduled caste, towards
which the constitutional provisions are made in order to ensure protection and compensation
to the section of the society who has suffered socially, economically and politically since the
pre-Independence period.

The Scheduled Tribes and Scheduled Caste of the Indian Society have remained backward
because of factors such as lack of access to participate in the national affairs of the country or
lack of access to information in order to facilitate participation in the former due to their
primary habitation in hilly and forest areas thereby being aloof from all the national matters
and issues.21

Thus, several policies and constitutional provisions were enacted by the constitution makers
and Government to provide them a platform in order to ensure a just and steady assimilation
of the SCs and STs into the society.

 Reservation in Legislative Assemblies:

20
Ibid.
21
M.P.Jain, Indian Constitutional Law, Wadhwa And Co Nagpur, 1997
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

The Constitution, under Article 330 provides that seats in Lok Sabha shall be reserved for the
Scheduled Cates and Scheduled Tribes in proportion to their population in the respective
states. However, by the 31st Amendment Act, states such as Meghalaya, Mizoram, Arunachal
Pradesh and Nagaland are excluded for the purview of the said provision, since they are
primarily tribal.22 Whereas Article 332 mandates that seats in Rajya Sabha shall be reserved
for the SCs and STs in proportion to their population in that particular state.

Thus, though. The Constitution has made a provision to ensure representation of the
backward class in the legislative assemblies, there is no bar to the membership number that
could be secured or provided to the SCs and STs.23

The researcher for the scope of this Research finds it significant to point out that the above
made constitutional provision was initially enacted for a period of 10 years from the date the
Constitution came into effect and the same was provided under Article 334 of the
Constitution. However, this mandate and safeguard of Reservation has been renewed every
10 years, and till today the reservation policy is being implemented in the Lok Sabha and
Rajya Sabha.24

The very fact that the makers of the Constitution considered the revocation of this
Constitutional Safeguard after a period of 10 years since the commencement of the
Constitution Is a signal enough of the aim and expectation of the Government and
Constitutional Makers that the SCs and STs, through Reservation shall reach the same
pedestal in the Society as the upper-class and shall thereby constitute an integral part of the
Society.

 Reservation in Government Jobs and Services:

Under Article 16(4), the citizens of the country belonging to the SCs and STs shall be given
reservation in Government Jobs and Services. This provision is an extension to the
fundamental right of equality guaranteed under Article 14 of the Constitution and therefore,
the state is prohibited from discriminating against an individual on the basis of place of birth,
language, sex, residence, descent and class.25 Whereas, under Article 17 of the Constitution,
private individuals and institutions are prohibited to discriminate against individuals on the
grounds of class, race, language et cetera, thereby abolishing Untouchability.
22
1 V.N.Shukla, Constitutional Law Of India, Eastern Book Company Lucknow, 1990
23
V.V.Giri V. D. Suri Dora, AIR 1959 SC 1318
24
5 This Has Been Effected Vide, 79th Constitutional Amendment Act 1999, Brought Into Force Wef.25.1.2000
25
Article 15 (1), And 15 (2) Of Indian Constitution
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

Article 16 (4) provides for preferential or protective measure enacted towards the Backward
classes, it is in no manner contradictory to the general right to equality guaranteed under
Article 14, 15 (1), 16(1) and 16(2), and thus is rather a measure to ensure equality be
guaranteed to the backward class.26

Article 16(4) is not only limited to its application to initial stages of placement or the
placement to the novice post but is also applicable to the placement to higher positions
through promotions.27 Though, the said provision is not a mandatory provision and is rather
an enabling provision,28 which confers a discretionary power on the state government to
implement the said article in order to ensure minimum representation of backward class
individuals in the government jobs and services.

Thus, the researcher would like to highlight an analysis to the said provision:

Firstly, it is important to note that while the constitution on the one hand guarantee equality
irrespective of caste, race, colour, religion et cetera in order to ensure that the post-
independence pattern of social segregation and discrimination is eradicated and curbed, while
on the same hand, the Constitutional makers made a provision i.e. Article 16(4) to allow
discrimination on the grounds of caste, race, language in order to correct the already instilled
pattern of Social Segregation in the Society.

The Supreme Court In the case of, M.R. Balaji v. State of Mysore 29 held that caste shall not
be the only consideration to determine the allocation of preference and protective treatment
under Article 16 (4), but considerations such as poverty, occupation, habitation shall also be
considered while authorizing the said preferential treatment under Article 16 (4).

The above point of analysis, leads to another analysis that 16 (4) is not an exception to 16 (1)
and thus the same right can be authorized by the state not only to a particular method of
ensuring representation of backward classes in Government services but can adopt any other
method to ensure the same.

The same was upheld by the Supreme Court in the case of, State of Kerela v. N.M. Thomas,
wherein the Court held that article 16 (1) permits reasonable classification just as article 14
does and as such the state could adopt any method under the former article to ensure adequate
26
Dr. Parmanand Singh, Equality, Reservation And Discrimination In India, Deep And Deep Publications New
Delhi, 1985
27
General Manager S.Rly V. Rangachari, AIR, 1962 SC 36.
28
M.R.Balaji, V. State Of Mysore, AIR 1963 SC 649
29
AIR 1963, SC 649.
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

representation of the scheduled castes and tribes in public services. The majority further held
that equality of opportunity in matters of employment demanded favoured treatment to enable
the weakest elements to compete with the advanced.30

And thus, it can be concluded that Article 16 (4) is not an exception to Article 16 (1) but an
explanation/ illustration of Article 16 (1).31

 Reservation in Educational Institution:

As per Article 15 (4) of the Indian Constitution, state Is authorised to make special provisions
for the advancement of socially and educationally backward class of the society whereas
Article 15 (1) prohibits the state from discriminating against an individual on the grounds of
castes, race, sex, religion et cetera.

The major point of analysis with respect to Article 15 (4) arises from the fact that the
constitution makers have gave unfettered authority to make special provisions with respect to
backward classes without specifying the parameters to determine as to what/who shall
substitute the backward class and to what extent the reservation can be made under the
special provision.

The determination of backward class status is not a simple procedure, since it involves the
consideration of complex and subjective components pertaining to economy and society.32

This particular question has been addressed by the Court in numerous cases.33 The court in
these cases held that the resources of the state is limited and since the very idea behind
providing reservation to the backward class is in consonance with allowing a less capable
individual preference over a more capable individual, on the basis of class and not merit.

Thus, in order to determine whether an Individual belongs to backward class, the

considerations that must be borne are social and educational backwardness, poverty, alone
cannot be the yardstick to determine backwardness, thirdly, the backwardness to be

30
State Of Keral V. N.M.Thomas, (1976) 2 SCC 310.
31
6 Indira Sawhney V. Union Of India, AIR 1993, SC. 477. Held That Equality Postulated Under The
Constitution Is Not Merely Legal But Real Equality. Holding Article 16 (4) To Be An Explanation Of 16 (1),
Justice Sawant Has Rationalised That Equality Of Opportunity Has To Be Distinguished From Equality Of
Results.
32
8 M.P.Jain, Indian Constitutional Law, Wadhwa And Company, Nagpur, 1997.
33
D.N.Chanchala V. State Of Mysore, AIR 1971, SC 839. State Of Andhra Pradesh V. P.Sagar, AIR 1968 SC
1367. Pradip Tondon V. State Of U.P. AIR 1982. D.N.Chanchala, V. State Of Mysore, AIR 1971 SC 1762.
Indira Sawhney V. Union Of India, AIR 1993 SC 477
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

determined shall be capable of being compared and lastly, the caste cannot be the sole criteria
to determine backwardness.

Thus, a wholesome approach should be undertaken, one that involves, caste, economic
background et cetera and no single consideration shall be considered a yardstick to determine
the same.

With respect to the extent of reservation that could be authorised by the Government, the
court in N.M. Thomas34 held that 15(4) is an explanation to 15 (1) and therefore the extent of
reservation cannot be controlled by 15 (1) and the same could very well go beyond the 50%
criteria.

 Resource Distribution

In order to eradicate social and economic inequalities within the society, the Directive
Principles of State Policy prescribed under Chapter IV commands the state to take measures
in order to remove socio-economic inequalities prevailing within the social structure.

This is again in furtherance of the achievement of bigger picture, i.e., the Right to Equality
guaranteed under Article 14. The directive principles are non-enforceable in the court of law,
however, they are significant to the Affirmative Action as it ensure just and fair governance.35

In furtherance of the above-mentioned directives, the state has made several policies with
respect to land re-distribution, land allotment. This however, proved a failure, since it led to
innumerable land related litigation being filed,36 which then, forced the government to nullify
the said directive after modifying the Right to property guaranteed under Article 31 six
times.37

Additionally, numerous heath care policies and programmes have been rolled out by the
government in furtherance of the Directive Principles of state policy.
34
State Of Keral V. N.M.Thomas, (1976) 2 SCC 310
35
Article 38 Of Indian Constitution- The State Shall Secure A Social Order In Which Social, Economic And
Political Justice Shall Inform All The Institutions Of National Life.
Article 39 Of Indian Constitution- Wealth And Its Source Of Production Shall Not Be Concentrated In The
Hands Of The Few But Shall Be Distributed So As To Subserve The Common Good. And There Shall Be
Adequate Means Of Livelihood For All And Equal Pay For Equal Work.
Article 41, 42 And 43 Of The Constitution- The State Shall Endeavour To Secure The Health And Strength Of
Workers, The Right To Work, To Education And To Assistance In Cases Of Want, Just And Humane
Conditions Of Work And Living Wage For Workers.
Article 44- A Uniform Civil Code.
Article 45- Free And Compulsory Education For Children
36
Kameshwar Singh V. State Of Bihar, AIR, 1962, SC 1116
37
44th Constitutional Amendment Act Of 1978 Abolished The Right To Property From Indian Constitution
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

 Legislative Action:

Numerous legislations are passed by the Government of India time and again to eradicate the
inequality so deep rooted in the social, economic and political structure of the Country. Some
of the prominent pieces of legislation are, ‘Bonded Labour Abolition Act, 1976’, ‘Protection
of Civil Right Act, et cetera.

CONSTITUTION, AFFIRMATIVE ACTION, JUDICIAL PRONOUNCEMENT AND

ANALYSIS- U.S.A

The United States of America has been racially segregated since the European Colonised the
U.S.A. and it was not till the early 20 th Century, that U.S.A moved for amending the
constitution to abolish slavery and guarantee equal rights to its citizens by way of 12 th and
14th Amendment, respectively. It then formulated and adopted policies in order to alleviate
the social disparity caused due to racial discrimination through it Affirmative Action.

This was in furtherance to the overruling of “Separate but Equal” doctrine evolved In the case
of Plessy v. Ferguson38 in the judgements rendered by the Supreme Court in the case of,
Brown v. Board of Education39 and Bolling v. Sharpe.40

 14th Amendment:

According to the 14th Amendment, made in the year 1866 and further ratified in 1868, No
state shall deny any person within its jurisdiction the equal protection of laws.

The 14th Amendment is crucial to the Affirmative Action plan in USA, since it further
clarified the constitutional stance of the U.S.A on the racial segregation and discrimination
which further helped the court apply the constitutional standards in a manner that upheld the
Affirmative Action.

The Congress in furtherance of 14th Amendment, introduced multiple race-conscious welfare

policies and programmes which were made applicable to all of the Black population thereby
furthering the goal of providing an opportunity of equal representation to the distressed and
discriminated section of the society.

38
(1896) 41 Law Ed 256.
39
(1953) 98 Law Ed 873
40
(1953) 98 Law Wd 888.
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

In the case of Fullilove v. Klutznick,41 the Supreme Court elaborated upon the
constitutionality of Affirmative Action and held that race conscious welfare programmes are
the facilitators in guaranteeing the implementation of 14th Amendment.

 Civil Rights Act, 1964.

The Government in its quest to ensure equality and to eradicate racial discrimination, enacted
the Civil Rights Act, 1964. This act led to the formulation and adoption of Affirmative
Action policy to the economic, social, political and judicial arena of the U.S.A.

The two most important of the above-mentioned Act is Title VI and VII of the Act which
provides legal sanction to the Affirmative Action policy by ensuring equal opportunity with
respect to employment and education by prohibiting discrimination on the grounds of race,
colour, religion, sex et cetera.42

The implementation of Affirmative Action in the U.S.A was hindered when the Supreme
Court in the Bakke case43, a case of ‘Reverse Discrimination’, ruled out the applicability of
quotas in admission to universities when, the respondent was refused admission, though
possessing greater qualification than his black counterpart.

In another landmark judgement, concerning the University of Michigan’s Undergraduate

Program, the Supreme Court upheld the policy of the University adhering to the Affirmative
Action, and held that race can be one of the factor to be considered by the college at the time
of accepting an application as it is a ‘compelling interest in obtaining the educational benefits
that flow from a diverse student body’.44

The court further held that, though ‘Affirmative Action’ is no longer justified as a manner of
alleviating historical oppression, it still was an effective method to fulfil the state’s objective
of ensuring and allowing diversity throughout the social structure.45

BRIEF COMPARISON BETWEEN THE AFFIRMATIVE ACTION PLAN OF INDIA

AND THE U.S.A:

41
448 U.S. 448 (1980)
42
John M. Alexander, “Inequality, Poverty and Affirmative Action: Contemporary Trends In India”, Jnanodaya:
Journal Of Philosophy, Vol. 11 (2004), Pp. 5-24, At P. 20
43
Regents of The University Of California V. Allan Bakke, (1978) 57 Law Ed 2d 750
44
Gratz V. Bollinger, 539 U.S. 244 (2003)
45
Grutter V. Bollinger, 539 U.S. 306 (2003).
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

The focal point of distinction between the Affirmative Action Policy adopted by the U.S.A
and India lies in the approach of the two nations, in order to alleviate the oppressed and
provide a social structure with is more equitable with respect to the Economic, Social and
Political Structure.

U.S.A. does not have constitutional provision with respect to affirmative action, explicitly
and has provided the same through a specific piece of legislation, namely Civil Rights Act,
1964 and by Judicial pronouncement.

This gives U.S.A. ‘flexibility’ to modify, amend, repeal the said program as per the changing
circumstances. Since, a constitutional amendment is time-consuming and a much lengthier
process as compared to an amendment of a legislative piece.

However, India has not inculcated this element of ‘Flexibility’ by enacting the Affirmative
Action in the Indian Constitution thereby leaving little or no scope for a change as per the
change that could or could not arise in the social structure.

Another point of distinction arises with respect to the implementation of the said Affirmative
Action. In the U.S.A, the citizens are more aware about the rights and remedies available to
them and hence greater degree of equitable justice is made available to its citizen. However,
the Indian Population, particularly the rural and the disadvantaged population is devoid of
their rights and remedies, which in turn hinder the full achievement of the goal of achieving a
social structure devoid of discrimination and inequality.

RELEVANCY OF THE AFFIRMATIVE ACTION POLICY IN THE 21ST CENTURY:

The present research paper is an attempt of the researcher to provide a broad picture of the
Affirmative Action Policy as is adopted and implemented in India and U.S.A by highlighting
the context, the judicial pronouncements, the jurisprudential theories and the Constitutional
and legislative enactments and provisions.

However, the said topic is explicitly vast per se, and involves sensitive issue pertaining to
equality which makes the topic more susceptible to debate and analysis.

According to the researcher, derived from the above stated information and analysis, the
researcher believes that the affirmative policies are very much relevant even today,
considering the lack of social justice and equality that Is prevalent in the current scenario.
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

Both the nations have different set of affirmative action, i.e. Indian affirmative action
involves reservation being provided to the discriminated section of the society in government
jobs, education and legislative bodies whereas the U.S.A affirmative action is aimed at
providing equal opportunity to the oppressed society at employment and education. However,
both the nations aim at achieving a socially equal society.

In the 21st century, there have numerous instances of atrocities being inflicted upon the lower
class in India and the people of Colour in U.S.A. For instance, the rape of a dalit girl inside a
public toilet in Uttar Pradesh and the refusal of the Police officer to file an F.I.R. against the
accused46 or the killing of a black civilian by police officials or killing of black prisoner in
police custody47, thus the researcher believes that the need for affirmative action is still
prevalent and the same is very much relevant in today’s circumstances.

Moreover, the affirmative action program has shown significant redistributive effect with
respect to access to education and the availability of job opportunities, although the benefit is
not available on an equitable basis to the oppressed section of the society.

However, the uneven distribution does not necessarily invalidate the said program since in
the long run this would help to eradicate the stigma attached to the oppressed society.

Also, the presence of affirmative action provides a defence and redressal mechanism to the
oppressed section of the society, which in turn helps to bring forth the presence of
discriminatory practices and thereby would influence formulation of better legislations and
policies.

CONCLUSION AND RECOMMENDATION:

 The Executive and the legislature should be more inclusive and analytical while
determining the beneficiaries of the provision with respect to the preferential
treatment to be provided to the oppressed section of the society.
 Since, recent times have seen an increased demand for inclusion of various sections of
Other backward classes, the government should enact stringent characteristics that
must be satisfied for a group/community to seek reservation.
46
UP: Dalit girl gang-raped inside public toilet; cops refuse FIR and drive victim out of police station, Mirror
Now Digital, Nov.18, 13;25 IST. https://www.timesnownews.com/india/article/up-dalit-girl-gang-raped-inside-
public-toilet-cops-refuse-fir-and-drive-victim-out-of-police-station/683298.
47
Statista Research Department, Number of people shot to death by the police in the United States from 2017 to
2020, by race, November 20, 2020. https://www.statista.com/statistics/585152/people-shot-to-death-by-us-
police-by-race/
 II-INTERNAL ASSIGNMENT: COMPARATIVE CONSTITUTION

 The government should periodically through a commission, study the impact of the
Affirmative Action of the society and modify, amend, repeal the same in accordance
with the recommendation of the commission.
 The government should enact a provision that does not give blanket reservation on the
basis of belonging to a socially oppressed section of society, and the judiciary should
apply the “Reverse Discrimination” doctrine as was applied by the U.S. Supreme
Court, in order to determine the need of preferential treatment to the individual.
 The government and judiciary should differentiate between group rights and
individual rights and form policies and pronounce judgements primarily on the basis
of Individual rights as is done by the U.S. Supreme Courts since its constitution
guarantees equal opportunity to every individual and preferential treatment to every
individual who is not even a victim of slavery. As opposed to Indian system, where
preferential treatment is meted to the group rather than the individual which leave a
great scope for judicial interpretation.