CLCT 5002 Judicial Process and Affirmative Action L T P C

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Pre-requisites/Exposure Understanding of nature of Constitutionalism
Co-requisites Theories related to equality and justice
Course Objectives
1. The course will lay the foundation on nature, scope and relevance of constitutional
framework on affirmative action
2. This course will help students to examine the nature of the judicial process and the
role of the judges as policymakers in evolving political principles of governance
related to affirmative action.
3. It elaborates the intricacies of judicial creativity and judicial lawmaking and
techniques employed in the judicial process to address affirmative action
4. The course aim provides theoretical understandings of affirmative action and judicial
process in a comparative canvas.
5. This course will give insights into issues of connected to affirmative action policies in
India and analyse the procedures and institutions designed to manage specific
challenges that confront many contemporary democracies

Programme Outcomes (PO’s)

Program Outcome 1: Students will demonstrate conceptual knowledge in core areas of law.
PO2: Students will effectively apply their learnings to practical legal issues.
PO3: Students will be able to exhibit effective law professional skills, employing oral and
written communication, legal research, analysis, rationalisation, and critical thinking.
PO4: Students will demonstrate ability to evolve alternative solutions from dynamic socio-
economic and techno-legal perspectives.
PO5: Students will demonstrate desirable qualities to be employable in the relevant market.
PO6: Students will show sensitivity towards ethical, moral and social issues arising in their
professional career.
PO7: Students will exhibit commitment, team building, networking, leadership and lifelong
learning skills to excel in legal world.
Programme Specific Outcomes (PSO’s)
PSO 1: Students will be able to demonstrate conceptual knowledge in core areas of social
sciences.
PSO 2: Students will be able to demonstrate integrated knowledge of legal principles and
social sciences.
PSO 3: Students will be able to exhibit skills in practices and procedures of Constitutional
Law.
Course Outcomes
Upon the completion of the course, the students would be able to

CO1. Examine and illustrate the vision for equality and the desirability of affirmative actions
in its historical context and their contemporary progression.
CO2. Define the dimensions of affirmative action policies in India and the main perspective of
judicial response to affirmative action programmes.
 CO3. Analyse the judicial scrutiny in reservations geared towards substantive equality in a
comparative context that has been developed in a variety of democratic systems to support
affirmative action.
CO4. Grade the practical application and the effective implementation of the scheme connected with
these concepts and evolve an innovative approach to address the contemporary challenges.
Relationship among the (COs), (POs) and (PSO’s)
CO PO1 PO2 PO3 PO4 PO5 PO6 PO7 PSO1 PSO2 PSO3

2 3 2 3 2 3
CO5002.1
3 2 2 2 2 2
CO5002.2
2 2 2 3
CO5002.3
3 2 3 3 2 2 2 2 3
CO5002.4
3 2 3 3 2 2 2 2 2 3
CO5002
1: Slight (Low) 2: Moderate (Medium) 3: Substantial (High)

Catalog Description

The course primarily aims to explore constitutionality of various normative considerations

that inform three major justifications for affirmative action concerning education and public
employment: compensatory justice, redistributive justice and diversity. It tries to discover the
theoretical underpinnings and empirical challenges of affirmative action in India and the rest
of the world. The existence of affirmative measures mainly results from constitutional
mandates, laws, administrative regulations – such as requirements on public contractors –,
court orders or voluntary initiatives that will make an in-depth study of the concepts of
“Reverse Discrimination and Affirmative Action.” On the other hand, affirmative action
means taking necessary action and introducing schemes to achieve them, which means
upliftment of the weaker section of the community. The judiciary being the touchstone
examining such policies and fundamental rights and other constitutional provisions, the
course aims to analyse the various aspects these on an empirical basis.

Course Content

Module I: Affirmative Action and Normative Considerations

 Understanding the different meaning, nature, and scope of affirmative action
 The conceptual framework: Postulates of equality, distributive, compensatory, and
procedural justice. Justice as reversibility and equality as differentiation
 Equality and inequalities: Identity, differences, and inferiority: Case studies from
India, US, Canada and South Africa
 Socio-economic exclusion and allocation of goods and the role of the state

Module-II: Philosophical and theoretical presuppositions

 The antidiscrimination principle and the presumption of equality
 Equal protection and equality of opportunity and equality of result
  The basis for compensatory justice
 Redistributive justification for affirmative action
 Equal protection and delimitation of the state’s domain of allocation

Module III: The Constitutional dimension of affirmative action: Approaches to

Constitutional Adjudication

 The historical and logical progression from discrimination to affirmative action

 Role of constitution-makers: the challenge of constitutional textualism
 Constitutional provisions
 Affirmative action and ‘constitutional moments’(Constitutional Amendments)
 The post-independent movements for reservation and its political dimensions
 Beneficiary groups: Reservation for minorities – Mapping rationales
 The role for the original meaning in various apex courts: ‘ Living – Tree’ doctrine

Module IV: Judicial Scrutiny to affirmative action programmes

 Judicial discourse over affirmative action: The pre-Thomas era to post- Indra
Sawhney
 Reservation as a facet of equality and not and exception
 Supreme Court on identifying backward classes
 Supreme Court’s discourse on merit and efficiency
 Backwardness among Scheduled Castes, Scheduled Tribes, and Other Backward
Classes
 Lessons from substantive equality and intersectionality: Reasonableness and
arbitrariness - the need to alter the standard scrutiny

Module V: Comparative and contemporary analysis of judicial response to affirmative

action
 US and Canadian experience
 Judicial confusion over the application of strict scrutiny
 Demand for data scrutiny: the relationship between individual and groups
 The overall analysis of the judicial position in the context of nexus between affirmative
action, equality of opportunity and compensatory justice

Reference Books/ Articles

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Doctrine’ (2000) Harvard Law Review 26.
 Ambdur R, ‘Compensatory Justice: The Question of Costs’ (1979) 7(2) Political
Theory
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Brunswick: Transaction, 1991.
 GRAHAM, Hugh Davis. Collision Course: The Strange Convergence of Affirmative Action
and Immigration Policy in America. New York: Oxford University Press, 2002.
 KATZNELSON, Ira. When Affirmative Action was White: An Untold History of Racial
Inequality in Twentieth-Century America. New York: Norton, 2005.
 SKRENTNY, John David. The Ironies of Affirmative Action: Politics, Culture, and Justice in
America. Chicago: The University of Chicago Press, 1996.
 SKRENTNY, John David. The Minority Rights Revolution. Cambridge (Mass.): Harvard
University Press, 2002.
 BLEICH, Erik. Race Politics in Britain and France. Cambridge: Cambridge University Press,
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 EDWARDS, John. When Race Counts: The Morality of Racial Preference in Britain and
America. New York, Routledge, 1995, pp. 154-166.
 ACKERMAN, Bruce. Social Justice in the Liberal State. New Haven: Yale University Press,
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 ANDERSON, Elisabeth. What is the Point of Equality? Ethics, January 1999, pp. 287-337.
 BARRY, Brian. Theories of Justice, vol. 1. Berkeley: The University of California Press, 1989
 Sowell, Thomas, “Preferential Policies: An International Perspective”, New Haven, Conn.
William Morrow and Co. (1990).
 Alexander, John M., “Inequality, Poverty and Affirmative Action: Contemporary Trends in
India”, Jnanodaya: Journal of Philosophy, vol. 11 (2004), pp. 5-24.
 Schnapper, Eric, “Affirmative Action and the Legislative History of the Fourteenth
Amendment”, Virginia Law Review, Vol. 71, No. 5 (1985), pp. 753-798.