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Benign Preferences: An Indian Decision & the Bakke Case
Author(s): Alan M. Katz

Source: The American Journal of Comparative Law, Vol. 25, No. 4 (Autumn, 1977), pp. 611-640
Published by: American Society of Comparative Law
Stable URL: http://www.jstor.org/stable/839929
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ALAN M. KATZ
Benign Preferences: An Indian Decision

& the Bakke Case
INTRODUCTION
In State of Kerala v. Thomas,l the Supreme Court of India

recently held that a state does not violate the constitutional guarantee of equality of opportunity in state employment2 when the state
promotes members of scheduled castes and scheduled tribes3 who have
failed to pass tests required of all other employees for promotion.4
ALAN M. KATZis a member of the Massachusetts Bar. In 1975-76, Mr. Katz
was research associate at the Indian Law Institute, New Delhi, sponsored by
the Berkeley Professional Studies Program in India. Appreciation to William
J. Rich and Harold A. Katz for their assistance in the preparation of this
article is expressed.
1. State of Kerala v. Thomas, 1976 All India Rptr. S. Ct. 490 (1976), decided 19 Sept. 1975.
2. Constitution of India, Art. 16, cl. 1 (1950). Sub-Art. 16(1) is quoted
in full, text at n. 22 infra.
3. The Constitution of India, Art. 366(24) defines "scheduled castes" as
"such castes, races or tribes or parts of or groups within such castes, races
or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution." Art. 366(25) defines "scheduled tribes" as "such
tribes or tribal communities or parts of or groups within such tribes or tribal
communities as are deemed under Article 342 to be Scheduled Tribes for the
purposes of this Constitution." Arts. 341(1) and 342(1) give the President
the power to designate a group as a scheduled caste or scheduled tribe by
public notification. Arts. 341(2) and 342(2) give Parliament some power to
include or exclude groups from the lists of scheduled castes and scheduled
tribes. The courts have no power to rule on the validity of a scheduled
caste/scheduled tribe designation by the President or Parliament. Siddappa
v. Chandappa, 1968 All India Rptr. S. Ct. 929, 932, 2 S. Ct. J. 560 (1968); Basavalingappa v. Munichinappa, 1965 All India Rptr. S. Ct. 1269, 2 S. Ct. J. 153
(1968). The courts may determine if a person is a member of a particular
scheduled caste or tribe.
The term "scheduled tribe" was first used in the Constitution of India,
which was enacted in 1950. The term "scheduled caste" dates from the Government of India Act, 1935. Both terms were coined to describe part of what
had previously been referred to as "depressed classes." The Indian Legislative
Council in 1916 defined "depressed classes" as including: criminal and wandering tribes, aboriginal tribes (now scheduled tribes), and untouchables (now
scheduled castes). Thus, the former "untouchable" status of Hindus and exHindus is often the criterion for inclusion as a scheduled caste. See also n. 24
infra. 79,995,896 people are members of scheduled castes. 38,015,162 are members of scheduled tribes. Census of India, 1971 Census.
4. For an overview on the subject of the use of law for the economic betterment of backward classes in India, including policies of protective discrimination, see Minorities and the Law (Imam ed. 1972). For additional, but
dated, discussion of the courts' construction of this law, see Galanter, "'Protective Discrimination' for Backward Classes in India," 3 J. Indian L. Inst. 39
611
612
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 25
The significance for India of the Court's holding in Thomas is that,

in distributing benefits such as employment and admission to educational institutions, state action which favors candidates from backward classes5 is permissible under the constitutional rights of equality
(1961); Imam, "Reservation of Seats for Backward Classes in Public Services
and Educational Institutions," 8 J. Indian L. Inst. 441 (1966); Radhakrishnan,
"Units of Social, Economic, and Educational Backwardness: Caste and the Individual," 7 J. Indian L. Inst. 262 (1965); Ghouse, "Judicial Control of Protective Discrimination," 11 J. Indian L. Inst. 371 (1969).
5. The Constitution of India uses the term "backward classes" in sub-arts.
15(4), 16(4) and 29(2), but the term is not defined in the Constitution. For
a discussion of some of the difficulties in determining if a community qualifies
as a backward class under the Constitution, see Revanker, The Indian Constitution-A Case Study of Backward Classes 182-237 (1971). India's First Five
Year Plan states that:
The term "backward class" is difficult to define. Backwardness is
expressed in lack of adequate opportunity for group and individual
self-development, especially in economic life and in matters of health,
housing and education. It is measured in terms of low levels of income, the extent of illiteracy, and the low standards of life demonstrated by living conditions.
Government of India Planning Commission, First Five Year Plan 634 (1951).
The Backward Classes Commission suggested four criteria for class backwardness: low position in the Hindu caste hierarchy, lack of educational advancement, inadequate representation in government service, and inadequate representation in private employment. Report of the Backward Classes Commis-
sion 46-49 (1956). However, the government of India rejected the Report.
Memorandum of the Government of India on the Report of the Backward

Classes Commission. At least one commentator argues that the government
reverts to caste as the criterion for backward class status because it lacks the
other necessary data. Agrawala, "Protective Discrimination and Backward
Classes in India," in Minorities and the Law 202 (Imam ed. 1972); see also
n. 24 infra. Scheduled castes and scheduled tribes prima facie come within
the term "backwardclasses." When "backwardclasses" are defined to include

scheduled
castes, scheduled
tribes, denotified,
nomadic, and semi-nomadic
tribes, and those with annual incomes falling below certain prescribed limits,
over 1/5 of the population qualify as members of backward classes. Government of India Ministry of Information and Broadcasting, India 1975: A Reference Annual 96 (1975). Courts can review the designation of a group as a
backward class. Balaji v. State of Mysore, Supp. 1 India S. Ct. 439, 1963 All
India Rptr. S. Ct. 649 (1963).
India has undertaken a wide range of Constitutional, legislative, and executive initiatives to better backward classes. Constitution Arts. 330, 332 and
334 reserve seats for members of scheduled castes and scheduled tribes in
the Lok Sabha, the lower house of Parliament, and state Vidhan Sabhas until
1980. Additionally, the government service is experimenting with pre-exam

training centers, relaxing criteria, supplementing scores on merit exams, and
automatic inclusion of scheduled caste and tribe members on lists submitted
Demotion of government employees to make
for promotion by selection.
positions available for members of backward classes is impermissible. Sudama
Prashad v. Divisional Supdt., Western Rly., 1965 All India Rptr. Raj. 109, 15
Indian L. Reports Raj. 108 (1965). The Commissioner for Scheduled Castes
and Scheduled Tribes issues an annual report on their status.
For simplicity and consistency, the term "backward classes" will also be
used to refer to ethnic, racial or regional groups in the United States which
have significantly less education and/or lower economic resources than their
proportion in the population would justify.
1977]
KATZ: INDIA & BAKKE
613
before the law and equal protection of the laws.6 Thus India's
Supreme Court has reached a decision on one of the most controversial and timely constitutional issues now facing the United States, the
issue raised but left undecided in DeFunis v. Odegaard,7 now raised
again in Bakke v. Regents of University of California.8
The aims of this article are to alert the American legal community
to the Thomas decision and, more importantly, to analyze Thomas to
determine the extent and nature of its relevance to the Bakke case
That India and the United
under the United States Constitution.
with
liberal democratic governStates are the two largest populations
ments,9 that India has a common law heritage, and that significant
parts of the Indian Constitution were modeled on the United States
Constitution,l? suggest that Thomas might provide an important analogy for the United States Supreme Court in deciding the constitutionality of state preferences for racial and ethnic groups.ll Regardless of the limits on the use of Thomas as an analogous case for constitutional analysis, the case provides the opportunity to see how
another government and its courts deal with state preference as a tool
for the betterment of backward groups. Further, the Court's discussion of American law in the Thomas opinions reveals the justices'
6. Constitution of India, Art. 14 (1950): "The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India." Arts. 15-18 elaborate on Art. 14's general guarantee of
equality.
7. 416 U.S. 312 (1974). The issue being referred to is whether a state
university, in granting preference to black, Chicano, Native American, and
Philippine-American applicants for admission, violates the equal protection
clause of the 14th Amendment. The Washington Supreme Court upheld the
constitutionality of a law school's preferential admissions program. DeFunis
v. Odegaard, 82 Wash. 2d 11, 507 P.2d 1169 (Wash. Sup. Ct. 1973), vacated, 416
U.S. 312 (1974).
8. Recently the California Supreme Court held that the preferential admissions program at the University of California, Davis, Medical School violated the equal protection clause. Bakke v. Regents of University of California, 18 C.3d 34, 553 P.2d 1152, 132 Cal. Rptr. 680 (1976).
9. The temporary "state of emergency" from 1975 to 1977 did not affect
the Thomas decision.
10. For example, the Art. 14 guarantee of equal protection was taken from
the U.S. Constitution. Basu, Commentary on the Constitution of India 260 (4th
ed. 1961).
11. At least one American commentator recently noted the similarity
of the competing arguments in India on the issue of state preferences for backward classes and in the United States on the DeFunis issue. See Greenawalt,
"Judicial Scrutiny of 'Benign Racial Preference' in Law School Admissions,"
75 Colum. L. Rev. 559 n. 1 (1975).
The term "preferences" will be used as a general term for preferences
granted to backward classes-preferences
ranging from the use of quotas to
excluding all discriminatory criteria from the decision-making process.
12. The Supreme Court of India does not issue an opinion of the Court
and label all other opinionrs as concurring or dissenting, in whole, in part, or
in result. Instead, the official count is only as to how many justices agree
on the outcome and each reader must tally those legal points which received
majority support.
614
[Vol. 25
views of what principles of American case law should underlie the

decision whether a state preference for a backward class is consistent with the constitutional guarantee of equality.
I
The narrow legal issue before the Supreme Court of India in
Thomas was the constitutionality of Rule 13AA of the Kerala State
and Subordinate Services Rules of 1958,13 and of two orders14 issued
under Rule 13AA. Rule 13A15 refers to requirements of passing
special and departmental tests to be eligible for promotion in the state
service and Rule 13AA states:
Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any
member or members, belonging to a Scheduled Caste or
Scheduled Tribe, and already in service, from passing the
tests referred to in Rule 13 or Rule 13A of the said Rules.16
Thus Rule 13AA allows promotion of members of scheduled castes and
tribes who have not passed otherwise required tests.17 Kerala's Rule
13AA, favoring scheduled castes and tribes in employment promotions,
was the latest in a series of such actions extending back before the
State was created.18 Rule 13AA and order P-2,19 giving members of
scheduled castes and tribes a two-year exemption from passing all
tests required for promotion, were issued on 13 January 1972. At the
end of the two years, Kerala issued order P-620 extending the exemption for a period covering two Public Service Commission tests to give
each employee two more chances to pass. In this article, Rule 13AA
and orders P-2 and P-6 will be referred to as the Backward Classes
Exemption.
13. These Rules are the scheme for regulating employment by the State
of Kerala.
14. These orders are plaintiff's exhibits 2 and 6 and are referred to as P-2
and P-6 in the justices' opinions. The orders had the same possible constitutional infirmity as rule 13AA so the Court concluded that either all were valid
or all invalid.
15. 1976All India Rptr. S. Ct. at 493.
16. Id. at 494. The other sentence of rule 13AA creates an exception, not
material to the issue in Thomas, for part of the police executive staff.
17. Rule 13AA is not the only relaxation of the test requirement. Rule
13A allows temporary exemption from passing a test when passing is a newly
prescribed requirement. Rule 13B exempts pentagenarians from passing tests
generally required for promotion.
18. Kerala was formed in November 1956. On 14 June 1956, its predecessor, the Travencore-Cochin Government, ordered lower standards on tests for
scheduled castes and tribes. From 1958 onward, scheduled castes and tribes
were given exemptions from passing tests. See 1976 All India Rptr. S. Ct.
at 496.
19. Id. at 494.
20. Id. P-6 states that no further extension will be given.
1977]
KATZ: INDIA & BAKKE
615
The plaintiff, a lower division clerk in the Registration Department, asked for a declaration that Rule 13AA was unconstitutional
and for mandamus compelling the state to forbear from giving effect
to orders P-2 and P-6. Promotion to upper division clerk was based
on seniority among those lower division clerks who had passed the
account test, the Kerala registration test, and the test on the manual
of office procedure. Plaintiff passed all three tests before 1972, the
year in issue, but he was not among the fifty-one Registration Department lower division clerks promoted that year. Thirty-four of the
promotees were members of scheduled castes or tribes who had more
seniority than the plainiff, but had not passed the tests. In 1972
scheduled castes and scheduled tribes constituted 10% of the population of Kerala, while their members held 2% of the gazetted positions
in the state service and 7% of the non-gazetted positions.21
Plaintiff argued that the Backward Classes Exemption, by preventing his promotion, violated his right to equality in state
employment guaranteed as a Fundamental Right by Article 16 of the
Constitution. Article 16(1), (2) and (4) states:
(1) There shall be equality of opportunity for all citizens
in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on the grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of them,
be ineligible for, or discriminated against in respect of, any
employment or office under the state.
(4) Nothing in this article shall prevent the state from making any provision for the reservation of appointments or
posts in favor of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.22
Art. 16's guarantee of equal opportunity in state employment is a
specific application of Art. 14, the Equality-Equal Protection Article.23
Sub-art. 16(1), the Equality of Opportunity Clause, is the affirmatively phrased guarantee of equality of opportunity in government
21. Id. at 501. "Gazetted"means that publication of the name of the ap-
pointee in the official gazette is necessary before the appointment is final. The
justices' opinions did not mention the percentage of Registration Department
employees or upper division clerks who were members of scheduled castes
and tribes.
22. Constitution of India, Art. 16. The Indian Constitution contains twelve
parts. The parts discussed in this article are Part III, Fundamental Rights;
Part IV, Directive Principles of State Policy; and Part XVI, Special Provisions
Relating to Certain Classes. The opinions in Thomas discussed the relation-
ship among these parts, an important issue in Indian constitutional law. See
also n. 57 infra.
23. 1976 All India Rptr. S. Ct. at 536, 546; Mohammed Shuji Ali v. Union
of India, 3 S. Ct. Cas. 76, 102 (1975); State of Jammu and Kashmir v. Triloki
Nath Khosa, 1 India S. Ct. 371, 383, 1 S. Ct. Cas. 19, 1974 All India Rptr. S.
Ct. 1 (1974). For the full text of Art. 14, see n. 5 supra.
616
THE AMERICANJOURNALOF COMPARATIVE

LAW
[Vol. 25
service. The issue under Sub-art. 16(1) is whether plaintiff was denied equality of opportunity when he was not promoted to upper division clerk because of favored treatment given to members of scheduled
castes and tribes. Sub-art. 16(2), the Anti-Discrimination Clause, is
a prohibition of discrimination on grounds including race, religion or
caste.24 Sub-art. 16(4), the Reservation Clause, states that neither the
guarantee of equality of opportunity nor the prohibition against discrimination on the basis of caste shall prevent the state from reserving government jobs for backward classes of citizens that are inadequately represented in the state service. Thus issues analyzed by the
Indian Supreme Court, and important to the determination of the
relevance of Thomas for the United States Supreme Court, include
whether Sub-art. 16(2) or 16(4) is dispositive of the case and, if not,
then what is the proper relationship among the above-mentioned
clauses of Art. 16.
Arts. 46 and 335 of the Constitution of India also deal with the
position of backward classes as state employees.25 Art. 46, a Directive
Principle to states in formulating policy, requires that:
The State shall promote with special care the educational and
economic interest of the weaker sections of the people, and,
in particular, the Scheduled Castes and Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.
Art. 335 provides:
The claims of the members of the Scheduled Castes and the
Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration,
24. The caste system which is at issue in Thomas is a basic feature of India's social structure and is well over 2000 years old. "A caste system is one
whereby a society is divided up into a number of self-contained and completely segregated units (castes), the mutual relations between which are ritually determined in a graded scale." Hutton, Caste in India 50 (4th ed. 1963).
The three basic characteristics of the Indian caste system are the opposition
of pure and impure, hierachy, and specialization, Lannoy, The Speaking Tree:
In Hindu India, there
A Study of Indian Culture and Society 137-57 (1971).
are four castes, with myriad subdivisions. Also living in India but outside
the caste system are subservient Hindu outcasts (untouchables), religious
minority groups, tribal societies, and semi-tribal communities. The Constitution of India, Art. 17, outlaws untouchability. One result of the caste system
has been that lower castes and ex-untouchables suffer from economic and social deprivation.
25. The Constitution of India with its 3915articles and nine schedules is
a more comprehensive document than the Constitution of the United States.
The Constitution creates policy on subjects that are regulated by statutory and
case law in the United States, see e.g., Art. 24, prohibition of employment
of children in hazardous employment; Art. 280, President shall appoint a Finance Commission; Art. 311 dismissal, removal, or reduction in rank of persons
employed in civil capacities under the Union or a state; Art. 320, functions
of public service commissions; and Art. 364, special provisions as to major
ports aid airports.
KATZ: INDIA & BAKKE
1977]
617
in the making of appointments to services and posts in

connection with the affairs of the Union or of a State.
Neither the plaintiff nor the defendants argued that Arts. 46 and 335
were decisive of whether the Backward Classes Exemption violated
the equality guarantee.
The Kerala High Court26 upheld the plaintiff's claim that Rule
13AA, orders P-2 and P-6, and the consequent promotion of 34 less
qualified members of backward classes, rather than the plaintiff, violated Art. 16.27 The High Court found that Kerala's action was not
a reservation and therefore did not fall within the Reservation Clause
As a result, the State's action was subject to the
[Art. 16(4)].
equality of opportunity guarantee of Sub-art. 16(1). The Kerala
preference based on caste and tribe was then found to violate Subart. 16(1) under the rationality test for equality and because the prefence as implemented promoted more than 50% preferred applicants,
thus putting non-preferred applicants at such a severe disadvantage
as to deny equality of opportunity.28
II
The Supreme Court of India decided by a 5-2 vote, with seven
separate opinions, that Kerala's preference in promotion for state employees who were members of scheduled castes and tribes did not
violate Art. 16 of the Indian Constitution. Of special importance for
this article, however, is the degree of judicial concurrence that the
equality of opportunity guarantee of Sub-art. 16(1), a specific application of the Art. 14 equality-equal protection rights, permits preferences based on membership in a scheduled caste or tribe. This is the
question which parallels the yet to be decided Bakke case in the
United States. The Supreme Court of India held 4 to 3 that the
Kerala preference was not a violation of the right of equality of opportunity of a state employee who was denied promotion because he
26. India basically has a single, hierarchical court system with state courts
and a Union Supreme Court. The High Court is the highest state court and
generally makes a de novo finding on the facts.
27. India L. Reports Kerala 549 (1974).
28. The Supreme Court previously held that reservation of more than 50%
violated equality. Balaji v. State of Mysore, Supp. 1 India S. Ct. 439, 1963
All India Rptr. S. Ct. 649 (1963). The Balaji case involved reservation under
sub-art. 15(4) of seats in educational institutions, but the Court said that the
decision was equally applicable for sub-art. 16(4). When members of preferred backward classes are unavailable to fill vaclancies in a given year, the
government "carries forward" such vacancies until a year when sufficient
numbers from the preferred classes apply. However, a Supreme Court case
has held that use of a carry-forward rule that resulted in reserving fifty-four
of one hundred seats for backward classes in a given year violated equality.
Devadasan v. Union of India, 4 India S. Ct. 680, 1974 All India Rptr. S. Ct.
179 (1964).
618
[Vol. 25
was not a member of a preferred backward class.29 On this issue

Justice Beg disagreed with the majority, voting to uphold the preference under the Reservation Clause, which has no specific parallel in
the United States Constitution.30
The 4-3 split was not based on disagreement as to the test to be
used in determining the extent of the equality right. All of the justices agreed that a classification which has a reasonable basis does
not violate equality. Most of the justices made no attempt to explain
the mechanics of applying the reasonable basis test.30a
None of the seven justices concerned himself more than briefly
with the question of how rigorous the reasonable basis test must be.
The majority did not suggest that the reasonable basis test applied
to classifications based on caste and tribal membership as indicative
of backwardness is more rigorous than the reasonable basis test for
equality applied to any legislative or executive classification.31 This
absence of discussion implies that the Indian Supreme Court's approach is to make a case-by-case determination of whether particular
types of classifications are reasonable and so not violative of equality.
The basis of the dissenting justices' conclusion that Kerala violated
the respondent's right to equality of opportunity was that classification based on membership in a scheduled caste or tribe, at least for
the purpose of granting preferences, is inherently unreasonable and
invalid. The Indian approach is not to develop a rigid definition of
"reasonable basis" so that the test for constitutional equality can be
applied almost mechanically.
Analysis of the four majority opinions reveals the justices' logic
The two imin finding a reasonable basis for Kerala's classification.
portant questions for analysis are, how did each justice characterize
Kerala's classification and what did he believe to be the demands of
constitutional equality? Chief Justice Ray stated that a classification
29. In the remainder of this article, the term "majority"of the Indian Supreme Court in Thomas will mean this four-justice majority that held the
Backward Classes Exemption not violative of equality of opportunity.

30. Thomas, supra n. 1 at 524. In the Supreme Court, the Advocate Gen-
eral of Kerala conceded that the State's section was not a reservation and was
not within sub-art. 16(4).

30a. See Part III B infra for further discussion of the reasonable basis test.
31. However the court will apply strict scrutiny to prevent a state from
invoking favoritism under the cloak of equality. 1976 All India Rptr. S. Ct.
at 552 (J. Fazal Ali concurring). After stating that the Equality of Opportunity and Anti-Discrimination Clauses will prevent politically powerful castes
from taking advantage of "backwardness," Justice Krishna Iyer said,
Not all caste backwardness is recognized in this formula (reasonable
basis test). To do so is subversive of both Art. 16(1) and (2). The
social disparity must be so grim and substantial as to serve as a foundation
for benign
discrimination.
...
If the real basis of classifica-
tion is caste, masked as backward class, the Court must strike at such
communal manipulation.
1976 All India Rptr. S. Ct. at 537, 532.
1977]
KATZ: INDIA & BAKKE
619
has a reasonable basis if the classification is founded on a substantial

difference and embraces all and omits none who naturally fall within
that category in light of the purpose of the law.32 However, in applying this formula, the Chief Justice made little effort to determine if
the scheduled caste/scheduled tribe classification embraced all and
omitted none who would benefit from a state employment preference
created to benefit backward classes. Instead he found that the preference did not violate equality because it sought only "adequate representation" and did not go beyond that standard.33 Justice Krishna
Iyer wrote that a classification for advancement in state service which
is consistent with administrative efficiency is reasonable.34 Subject
to this broad efficiency criterion, a sensitive interpretation of equality
of opportunity does not recognize a critical distinction between distribution according to "merit" of individuals and distribution according to "need" of depressed groups.35 The Constitution itself sanctions
classification based on backwardness and demarcates scheduled castes
and tribes based on backwardness and so suggests the reasonableness
of Kerala's classification.36 According to Justice Fazal Ali, equality
forbids hostile discrimination.37 The doctrine of reasonable classification guarantees that equality will not just be for the advanced and
educated sections.38 The only way that Art. 14 and equality can be
achieved is through boosting the backward classes by giving them concessions and facilities and removing handicaps.39 For Justice Mathew
a reasonable basis for a classification requires "relevant differences"
between classes, i.e., distinctions having a rational relation to the end
sought.40 The state can adopt any measure to ensure adequate representation of scheduled castes and tribes so long as it does not dispense
with the necessary efficiency of administration nor classify solely on
grounds such as race or caste, prohibited by the Anti-Discrimination
Clause.41 In interpreting the constitutional guarantee of equality,
courts should require proportionate equality.42
The opinions upholding the validity of the Backward Classes
Exemption under the reasonable basis test for the sub-art. 16(1) right
to equality of opportunity share some common elements. All characterized the scheduled caste/scheduled tribe classification as a preference based on backwardness and, therefore, as not conflicting with
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
1976 All India Rptr. S. Ct. at 497, 499.

Id. at 500.
Id. at 537.
See id. at 528.
Id. at 532-33, 536.
Id. at 546.
Id.
Id.
Id. at 513, 519.
Id. at 519.
Id. at 517-18.
620
[Vol. 25
the constitutional prohibition of discrimination on grounds of race or

caste.43 After finding sufficient evidence of the backwardness of
scheduled castes and tribes, the justices did not concern themselves
with the questions of whether other equally backward communities
were not receiving a preference or whether the individual members
of scheduled castes and tribes who were benefitting from the preferThe justices agreed that a
ence were themselves underprivileged.
state need not use uniform standards in distributing a benefit if backPreferences
ward classes will not be able to compete successfully.
for backward classes are permissible because the constitutional goal
is to achieve "actual" equality.
Important here is a determination of what elements of the factual
situation were indispensable to the Supreme Court's approving the
Backward Classes Exemption. The Court's evaluation of Kerala's factual situation will be discussed in terms of the requirements of constitutional equality as to the beneficiary class of a state preference,
the form of the preference, and the impact on the state institution
granting the preference.
The class benefiting from the state preference must be severely
backward, although the Court did not delineate specific criteria for
The state's purpose in granting a preference cannot
backwardness.
be solely to benefit a particular religion, race, caste or sex. However
a class based on backwardness can be defined in racial, caste or any
other terms. The preference need not be extended to all backward
classes. The beneficiary class can be more or less inclusive than the
list of scheduled castes and tribes created by Presidential notification.
Further, if the preferred class is backward, the individual beneficiaries
of the preference need not all be backward. The form of the preference is unimportant in constitutional adjudication. Quotas, relaxed
standards, and weighing of caste diversity and individual hardship
are equally constitutional. The justices who voted to uphold Kerala's
preference, which was a temporary exemption, also would have voted
to uphold a permanent exemption. The Court intends to strike down
preferences that provide more than adequate representation44 or reserve more than 50% of the openings in a given year, but violation
of these limits will be determined by looking at the overall employment situation in the state service.
43. Classification by caste designation is constitutionally permissible if
caste is a designation used because it is indicative of social and educational

backwardness. P. Rajendran v. State of Madras, 2 S. Ct. J. 568; 1968 All India
Rptr. S. Ct. 1012 (1968).
44. The facts in Thomas did not compel the justices to grapple with the
issue of what constitutes "adequate representation." The only criterion that

one could infer from the justices' opinions is that representation is adequate
if it is proportionateto the group's percentage in the population.
1977]
KATZ: INDIA & BAKKE
621
III
We can now proceed to inquire to what extent the Thomas case
resolved issues present in the American Bakke case, and thereafter
to compare the Indian and American approaches to equal protection.
A. Is Thomas Analogous to Bakke?
The Bakke issue is: do state-created preferences for some racial
and ethnic groups in admission to educational institutions violate the
14th Amendment equal protection rights of a person who fails to receive the state benefit solely because of the preference granted to
others. The facts of Thomas, which include state action, a preference in employment, and a plaintiff who failed to get the state benefit solely because others received preferred treatment, parallel the
14th Amendment issue. Two factual elements of the 14th Amendment
issue are more problematic: first, whether scheduled castes and
scheduled tribes in the Indian context are analogous to racial and
ethnic groups in the American context and, second, whether the preference granted by Kerala is analogous in form to any preferences
granted in the United States.
In this paragraph only, the analysis assumes that classification
criteria prohibited by the Anti-Discrimination Clause are analogous to
classification forming a suspect class under 14th Amendment equal
protection. The majority view of the Indian Supreme Court in
Thomas was that scheduled castes and tribes are not castes or races
as these terms are used in the Anti-Discrimination Clause. Therefore
Kerala's promotion preference did not violate the Anti-Discrimination Clause. Under American equal protection theory, racial or ethnic
classification generally creates a suspect class. Because the Indian Supreme Court concluded that scheduled castes and tribes are not castes
or races, the scheduled caste/scheduled tribes classification in Thomas
is not comparable to a state preference in the United States for a
racial or ethnic group. However this difference between the characterization of the beneficiary classes serves to distinguish Thomas only
if the characterization of scheduled castes as not being castes was a
necessary basis for the Indian Supreme Court's decision. As further
analysis45 reveals, the Court would have upheld the Backward Classes
Exemption even if the beneficiary class of the preference was classified on the basis of caste, race or sex. Generally, any state promotion
preference not rationally related to the merit of the promotees violates equality even if the basis of classification is not prohibited by
the Anti-Discrimination Clause. The Indian Supreme Court has allowed one exception to this proposition: a state promotion preference
in favor of members of a severely backward class that is under45. See text at n. 54 infra.
622
[Vol. 25
represented in the state service does not violate Art. 14 or 16 even

if the beneficiary class is a racial or caste group.46 Therefore, the
analogy between Thomas and Bakke is valid.
Determining whether the facts of Thomas are analogous to a
particular Bakke-type case which might be litigated in the United
States requires placing the Backward Classes Exemption on a
spectrum of preference options. Kerala's exemption did not attempt
to make promotion dependent on competence by eliminating subtle
forms of discrimination. Kerala intended scheduled castes and tribes
to achieve adequate representation at all levels of the state service,
largely regardless of the competence of individuals.47 However the
State did not go so far as to create quotas. The Kerala preference
is best described as temporarily exempting members of scheduled
castes and tribes from all requirements that had prevented scheduled
castes and tribes from achieving parity in the state service. The state
policy in granting the preference was based on a belief that scheduled
castes and tribes were unable to compete successfully in the tests required for promotion because of the educational and economic backwardness of those groups. A comparable form of preference for admission to a state law school in the United States would: (1) admit
members of preferred classes who qualified under the generally applied standards,48 (2) totally ignore LSAT scores and undergraduate
46. Chief Justice Ray says that sub-art. 16(2) permits an additional preferstates.
ence in the All India Service, a preference for underrepresented
The Supreme Court of India long ago held that, when a state creates quotas
for all available positions in the state service, the quotas for backward classes
under the Reservation
will be allowed as reservations
Clause, but the other
v.
Venkataramana
quotas will be struck down as violative of Art. 16 equality.
State of Madras, 1951 All India Rptr. S. Ct. 229, 14 S. Ct. J. 318 (1951), accord,
State of Jammu and Kashmir v. Triloki Nath Khosa, 1 India S. Ct. 371, 1 S.
Another case used sub-art.
Ct. Cas. 19, 1974 All India Rptr. S. Ct. 1 (1974).
quota system for admission to engi29(2) to strike down a state-sponsored
reversed on the quotas for
neering and medical schools, but was subsequently
(First Amendment)
backward classes by the Constitution
Act, 1951, adding
1951 India
State of Madras v. Champakam,
sub-art. 15(4) to the Constitution.
Justice Khanna's dissent
S. Ct. 525, 1951 All India Rptr. S. Ct. 226 (1951).
bench's
argued that the Court's decision in Thomas overruled the seven-judge
to make a reserunanimous decision in Champakam that it is not permissible
1976 All India Rptr. S. Ct.
vation of seats on the ground of backwardness.
at 511.
47. From an American perspective,
promotion based on seniority without
any reference to the skill of the candidate seems to make no effort to actually
However, in analyzing India this conclusion
compare the merit of candidates.
is often presumed to be equivalent
to
because seniority
must be modified
merit.
So, for example, when in 1973 Prime Minister Gandhi elevated Justice
Ray, the fourth most senior Supreme Court justice to the Chief Justiceship,
the legal community was in an uproar and the three more senior justices resigned.
tribe lower division clerks
no scheduled
caste/scheduled
48. Apparently
had passed the three tests generally required for promotion to upper division
clerk. Therefore, the justices' opinions do not discuss who would be promoted
1977]
KATZ: INDIA & BAKKE
623
grades for members of the preferred class who would not be admitted
without the benefit of a preference,49 and (3) not take into account
the LSAT scores and undergraduate grades of members of nonpreferred classes when comparing these applicants with members of
preferred classes who would not be admitted without a preference.
For an American legal analysis, the important point about the form
of Kerala's preference is that the preference seeks to make scheduled
castes and scheduled tribes able to compete successfully without reserving slots, but also without applying strict competence criteria.
Having examined the extent of the factual parallels between the
Thomas case and a Bakke situation, the analysis shifts to whether the
Equality of Opportunity Clause is equivalent to the 14th Amendment
Equal Protection Clause. Two potential differences will be discussed:
first, the presence in the Constitution of India of the Anti-Discrimination and Reservation Clauses of Art. 16, Art. 335, and Art. 46 which
have some influence on the meaning of the Equality of Opportunity
Clause and, second, the wording of the protected right, "equality of
opportunity" as distinguished from "equal protection of the laws."
Art. 335 of the Indian Constitution says specifically that the state,
in taking the claims of scheduled castes and tribes into consideration
in making appointments to the state service, must act consistently
with the maintenance of efficient administration Regardless, the Supreme Court concluded that the Equality of Opportunity Clause itself
implies a maintenance of efficiency limitation.50 Some justices said
that the state need not maintain the highest possible level of efficiency in the state service, but that the state cannot waive the minimum
Other justices
requirements necessary for maintaining efficiency.
state
from
to
forbid
the
seemed prepared
granting preferences that
would reduce efficiency,51 but Justice Krishna Iyer, expressing this
in a competition between a scheduled caste member with five years seniority
who had passed the tests and a scheduled caste member with ten years seniority who had not passed the tests. This article assumes that the applicant with
less seniority would be promoted. Reservations are only constitutional if in
practice they work in favor of backward classes. Raghuramulu v. State of
Andhra Pradesh, 1957 India L. Reports A.P. 772, 1958 All India L. Rptr. A.P.
129 (1957). See also V. V. Giri v. SuriDora, 1959 All India L. Rptr. S. Ct.
1318,1960S. Ct. J. 1149, 1 India S. Ct. 426 (1960).
49. This article assumes that, but for the reliance of law school admission
committees on LSAT scores and undergraduate grades, members of backward
classes would compete successfully in the law school admission process.
50. 1976 All India Rptr. S. Ct. at 498 (Ray, C.J.), 506 (Khanna, J.), 52627 (Krishna Iyer, J.), 551, 555 (Fazal Ali, J.).
51. Justice Khanna, dissenting, suggested that the minimum qualifications
for promotion, including the passing of tests, represent the state's view of the
minimum requirements for maintaining administrative efficiency. Id. at 506.
In contrast, Justice Krishna Iyer simply assumed that the state would take
administrative efficiency into consideration in implementing any otherwise
constitutional promotion preference. Id. at 526.
624
[Vol. 25
view, warned that "(e)fficiency means, in terms of good government,

not marks in examination only, but responsible and responsive service
to the people."52 The view of at least six of the seven Indian Supreme
Court justices in Thomas was that Art. 335 did not expand the scope
of preferences for members of scheduled castes and tribes permissible
under the Equality of Opportunity Clause.53
The characterization of the beneficiaries of Kerala's preference as
Clause
a caste or a non-caste class under the Anti-Discrimination
seems to have largely depended on the justice's view of whether the
Backward Classes Exemption violated the Equality of Opportunity
Clause.54 This conclusion as to the bases of the justices' decisions on
the Anti-Discrimination Clause issue is supported by their uniformly
brief discussions of this clause. For the Supreme Court of India, the
Anti-Discrimination Clause serves largely as a guideline, not a limit,
for interpreting the general right to equality that is embodied in the
Equality of Opportunity Clause.
Six of the justices found Rule 13AA not to be a reservation within
the state's power under the Reservation Clause.55 The justices split
4-3 on the question of whether this clause, allowing reservation of
posts for any backward class, is an exemption to the Equality of Opportunity Clause. The dissenting justices believed that the Reservation Clause creates the sole exception to the requirement of equality
of opportunity in state employment.56 The majority disagreed, saying
that the Reservation Clause is an explanation of the Equality of
Opportunity Clause. Thus for the majority, the Reservation Clause
reinforces the conclusion that a state promotion preference for scheduled caste and scheduled tribe employees does not deny equality of
opportunity to non-preferred employees. Thus an individual justice's
conclusion that the Reservation Clause is an exception to or explanation of the Equality of Opportunity Clause was based on the justice's
interpretation of sub-art. 16(1) equality of opportunity as either prohibiting or permitting preferences for scheduled castes and tribes.
52. Id. at 534, 536.
53. Justice Krishna Iyer differed with this view believing instead that the
specificity of Art. 335 supported the conclusion that state employment preferences do not violate equality of opportunity. Id. at 535.
54. Justice Krishna Iyer decided that scheduled castes and scheduled tribes
are not castes, but are an amalgam of castes, races, groups, tribes, communities
or parts thereof found to be in need of massive state aid. Id. at 535. Justice
Fazal Ali similarly concluded that scheduled castes and tribes were not within
clause 16(2) because they constituted a class. Id. at 549.
55. Id. at 498 (Ray, C.J.), 506-07 (Khanna, J.), 512 (Mathew, J.), 528, 536
(Krishna Iyer, J.), 543 (Gupta, J.), 555 (Fazal Ali, J.).
56. Before the Thomas case, most commentators assumed this to be the
correct view. See, e.g., Ramachandran, "Untouchability and Protective Discrimination,"in Minorities and the Law 192 (1972); Agrawala, "Protective Discrimination and Backward Classes in India," in id. at 201.
1977]
625
KATZ: INDIA & BAKKE
Art. 46 of the Constitution directs the states to promote with

special care the interests of the scheduled castes and tribes. The importance to be given to the Directive Principles of State Policy in
judicial interpretations of Fundamental Rights is a hotly debated and
somewhat unresolved issue in Indian Constitutional Law.57 Chief
Justice Ray and Justice Mathew attached little importance to Art. 46
in reaching the conclusion that the Backward Classes Exemption is
valid under the Equality of Opportunity Clause. However Justice
Fazal Ali interpreted this clause with the help of Art. 46 and Justice
Krishna Iyer gave emphatic expression to Art. 46 in his decision of
the constitutional issue. Justice Gupta's dissent58 should be interpreted as reinforcing the conclusion that the Indian Supreme Court,
in refusing to strike down the Backward Classes Exemption as a denial
of equality of opportunity, relied somewhat on Art. 46. However, no
justice in the majority stated or implied that the Equality of Opportunity Clause would not permit a preference in favor of scheduled
castes and tribes but for Art. 46.
Thomas held that the equality right does not prevent state preferences in favor of backward races. Justices Fazal Ali and Krishna Iyer
can be described as relying on the harmonious construction of the
Equality of Opportunity Clause and Art. 46 as providing a substantial
justification for the decision. The Court did not find sub-art. 16(4)
or Arts. 46 and 335 necessary for this decision, but the Court inevitably was influenced by the use in the Indian Constitution itself of
the classification "scheduled castes and scheduled tribes" and by the
Reservation Clause and Art. 335 which specifically deal with the position of backward classes in government service. The United States
Constitution must be distinguished because it does not use racial or
ethnic classifications nor does it emphasize a national purpose of improving the economic conditions of backward classes.59 The Indian
Constitution as a whole suggests that preferences for scheduled castes
and tribes would be permissible, but the United States Constitution's
overall tenor does not imply that racial preferences are acceptable or
57. Justice Gupta argued strenuously that to view Art. 46 as justifying the
Backward Classes Exemption would require justifying a tax exemption for
scheduled castes and scheduled tribes which was struck down in State of Rajasthan v. Thakur Pratap Singh, 1960 All India Rptr. S. Ct. 1208, 1 India S.
Ct. 222 (1961). Id. at 542. Art. 37 says that the Directive Principles are not
enforceable by the courts, but that the states have the duty to apply these
principles. However, the Court ruled in Keshavanand Bharati v. State of Kerala, 1973 All India Rptr. S. Ct. 1461, 4 S. Ct. Cas. 225 (1973), that the Directive
Principles of Part IV as a whole should be read into the individual Fundamental Rights of Part III.
58. See n. 57 supra.
59. U.S. Const. art. VI [3] says:
". .
no religious
test shall
be required
as a qualification to any office or public trust under the United States." The
preamble to the Constitution of the United States mandates that the government "promote the general welfare."
626

LAW
[Vol. 25
unacceptable. However, an American court trying to decide the extent

to which Thomas is analogous to Bakke should not overemphasize this
difference in constitutional context of the Equality of Opportunity
Clause and the 14th Amendment. First, as has been stated, Thomas
held that the Equality of Opportunity Clause itself permitted the challenged state employment preference. In its first application of the
equality right to protective discrimination, the Court naturally tried
to bolster its decision with all potentially supporting constitutional
language. Second, the more extensive Indian Constitution includes
statements of government policy of a type that would be found in
acts of Congress in the United States. Some articles of the Indian
Constitution can be amended simply by Parliamentary enactment
without approval of the states.60 As a consequence, some provisions
of the Indian Constitution are enforced more strictly by Indian courts
than are others.61
Unlike the 14th Amendment, India's Art. 14 guarantees both
"equal protection of the laws" and "equality before the law." "Equality before the law" is an expression of the English common law
whereas "equal protection of the laws" was drawn from the Constitution of the United States.62 The right to "equality before the law"
is found in most written constitutions other than that of the United
States.63 Generally, attention should be paid to every clause and
word of a constitution.64 This suggests that "equality before the law"
and "equal protection of the laws" in Art. 14 should not be interpreted
as synonymous. However, the Supreme Court of India has not made
any substantive application of the guarantee of equality before the
law as distinct from the application of the guarantee of equal protection.65 In fact, the doctrine of classification laid down by the United
States Supreme Court has been adopted by the Indian Supreme Court
as the test of Art. 14 equality, the combined guarantee of equality
before the law and equal protection.66 In interpreting the EqualityEqual Protection Article a court is permitted to refer to decisions of
60. Constitution of India, Art. 368.
61. See, e.g. n. 25 supra.
62. Basu, supra n. 10 at 260.
63. Constitution of Burma (1948) ? 13; Constitution of Czechoslovakia,
Art. 1(i); Constitution of Eire (1937) ? 40(1); Constitution of Japan, Art. 14;
Constitution of Switzerland, Art. 4; Constitution of West Germany (1948) Art.
3 (i); and Constitution of Yugoslavia, Art. 4.
The Universal Declaration of Human Rights, Art. 7, and the International
Covenant on Civil & Political Rights (1966), Art. 26, state rights to both equality before the law and equal protection of the laws.
64. Marbury v. Madison, 1 Cr. 137, 174 (1803); United States v. S.E. Underwriters Assn., 322 U.S. 533 (1944).
65. Basu, supra n. 10 at 260 n. 16.
66. Seervai, Constitutional Law of India: A Critical Commentary 196-97
(1967).
1977]
KATZ: INDIA & BAKKE
627
American courts on the equal protection clause of the American Constitution.67

Underlying the majority's decision that a state preference in favor
of some backward cases is consistent with the guarantee of equality
for all persons was the view that state measures to achieve actual
equality further the purpose of the equality guarantee.68 Although
the equality "of opportunity" language might be interpreted as suggesting the actual equality emphasis, the Indian Supreme Court views
the words "of opportunity" as simply the appropriate description of
equality in state employment and not as changing the meaning of
equality.69 Chief Justice Ray said that preferential treatment for
scheduled castes and tribes means equality of opportunity for allthe constitutional goal.70 Justice Krishna Iyer argued that equality
of opportunity only makes sense if there is a strategy whereby depressed groups can claim a fair share.71 Justice Mathew said that
each member of the community, no matter of what social position,
should have equal opportunity to use his endowments.72 The conclusion that constitutionally guaranteed equality means something more
than a narrow formalistic equality which requires the state to apply
uniform standards to dissimilarly situated groups underlies the Supreme Court's decision in Kerala v. Thomas. This conclusion was not
based on any language that differentiates Art. 14 from the 14th Amendment. The decision that actual equality is the goal of Art. 14 and 16
interprets the intention of the framers of the Constitution in light of
changed social conditions. Understanding the intention of the framers
of the 14th Amendment in light of changed conditions will also be
crucial for the United States Supreme Court.73
B.
A Comparison of Approaches to Benign Racial Classification.

A functional description of the Indian Court's approach will
67. State of Uttar Pradesh v. Deoman, 1960 All India Rptr. S. Ct. 1125,
1131-32, 1960 India Cr. L.J. 1504 (1960). For a discussion of the similarity
between United States Supreme Court decisions under the equal protection
clause and early decisions of the Indian Supreme Court applying the equality
guarantee, see Douglas, From Marshall to Mukherjea: Studies in American
and Indian Constitutional Law 308-31 (1956).
68. Justice Beg expressed the contrary view that sub-art. 16(1) was not
designed to produce actual equality. 1976 All India Rptr. S. Ct. at 522.
69. It has been argued that equality of opportunity is the moral foundation
of 14th Amendment equal protection. Lavinsky, "DeFunis v. Odegaard: The
'Non-Decision' With a Message," 75 Colum. L. Rev. 520 (1975).
70. 1976 All India Rptr. S. Ct. at 501.
71. Id. at 536.
72. Id. at 515-16.
73. Some nineteenth century cases are said to show that the purpose of
the 14th Amendment was to prevent discrimination against black people. See
Strauder v. W. Va., 100 U.S. 303, 306-07 (1880); Slaughter House Cases, 83
U.S. (16 Wall.) 36, 81 (1872). However more recent cases view all racial
classifications as suspect under the fourteenth amendment. See Loving v. Va.,
388 U.S. 1, 11 (1967); Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
628
[Vol. 25
necessarily imply rigidity in what has already been described as a

flexible process. The description is largely the product of inductive
reasoning which begins with the Court's result and explains that result in terms of the Court's reasonable basis test for equality.
A classification does not violate the Art. 14 and 16 equality
guarantee if the classification has a reasonable basis. A classification
has a reasonable basis if it is founded on substantial differences and
is rational in relation to the purpose of the law. When the challenged
regulation grants a preference to a class of candidates for positions
in the state service or state schools, applying the reasonable basis test
is a two-step process. First, the court determines the purpose of the
state in granting the preference. The purpose will either be to prefer applicants based on competence or to create a preferred class for
other reasons. When the aim of the preference is other than measuring the competence of candidates, the Court determines whether the
aim is to achieve equality or to create a favored group that is either
consistent with or inimical to the purpose of the constitutional right
to equality. A classification among candidates for state service or
schools that does not seek to differentiate the more competent candidates nor to achieve equality will be viewed by the courts as not
having a reasonable basis.
Having determined that the purpose of Kerala's Rule 13AA classification is to further equality, the Court proceeded with the second
step of the reasonable basis test, determining whether the classification bears a rational relation to the purpose for which it is made. A
classification is rationally related to its purpose when it is a just means
of achieving the purpose and the classification is based on differences
that are substantial in light of that purpose. A classification based
solely on race or caste does not satisfy this "rationally related" requirement. A preference designed to achieve equality is just, and
based on substantial differences, only if the beneficiary class is both
severely backward and under-represented in the service.
Equality is furthered both by state standards which give each individual the same opportunity to use his talents and by the use of
uniform standards for all individuals. In resolving these conflicting
aspects of equality, the Indian Supreme Court is slowly defining the
circumstances under which a state can prefer a class of candidates
for the purpose of creating equality of opportunity for these candidates. More than 20% of the people in India fall within classes that
can be preferred for state employment, promotion, and admission to
educational institutions without violating the Constitution.74 The
states are given great freedom in choosing the form of the preference.
74. Although discrimination against women in India is acknowledged by
the Government, the Government has not created state preferences in their
favor. For an introduction to the status of women in India and the Govern-
KATZ: INDIA & BAKKE
1977]
629
The Indian Supreme Court's approach for determining whether

a state-sponsored preference violates the equality right can be compared with the approaches of a) Justice Douglas' dissenting opinion
in DeFunis; b) those who would use the compelling state interest test
because race is a suspect class; c) those who would use the rational
basis test when a racial preference is for benign purposes; d) and one
of the proposed intermediate standards between the minimal rational
basis test and the rigorous compelling state interest test.
In DeFunis, Justice Douglas said that when a state does not apply
uniform standards in choosing among law school applicants, but instead uses a racial classification in determining what standards to
apply, the racial classification violates equal protection unless the application of different standards is racially neutral.75 He did not explicitly discuss whether state use of uniform standards that do not
involve an explicitly racial classification and are not intended to exclude any racial group is unconstitutional racial discrimination.76 A
court would determine whether the equal protection right of a member of the non-beneficiary racial class is being violated by looking at
the state's purpose in making the racial classification.77 Justice Douglas concluded that a new trial was needed in DeFunis to determine
if the state's separate classification of Blacks, Chicanos, Native Americans and Philippine-Americans
was racially neutral, i.e., merely to
rectify cultural and racial biases in the LSAT and undergraduate
grades.78 Justice Douglas' approach would have produced the same
result reached in Kerala v. Thomas, because the Kerala High Court
did not make a finding whether the purpose of Kerala's Rule 13AA
was to insure that all candidates compete based on individual "merit"
ment's efforts to improve the position of women, see Central Institute of Research and Training in Public Cooperation,Women in India (1975).
75. 416 U.S. at 334.

76. Justice Douglas stated that the LSAT measures cultural factors, but
did not discuss whether a state law school that uses the LSAT in evaluating
black applicants violates equal protection. Id. Thus Justice Douglas does not
suggest a resolution of the issue of whether a uniform but racially non-neutral
standard violates equal protection. He did indicate that admitting students
by lottery is a uniform and racially-neutral standard and so permissible under
the equal protection clause. Id. at 344.
77. Justice Douglas said that any state-sponsored preference to one race
is invidious and cannot even be justified by a compelling state interest. 416
U.S. at 343-44. It has been argued that Justice Douglas' position is close to
the position that a racial classification for distribution of important state benefits is per se invalid. See Greenawalt, supra n. 11 at 565-66. However, distilling from Justice Douglas' opinion a test for equal protection reveals that
it is a "preference" and not a racial classification that is per se invalid. Justice Douglas states that the Law School Admissions Committee properly separated minority applicants. 416 U.S. at 334. For Justice Douglas, the purpose
for making a racial classification and not the mere racial classification is the
key to the constitutional determination.
78. 416 U.S. at 326, 336.
630
[Vol. 25
or to promote members of backward classes regardless of their competence in comparison to other candidates.79 For Justice Douglas,
constitutionality turns on the state's purpose in choosing the particular means of helping a backward class in competition for jobs or
admission to school.80 For the Supreme Court of India, constitutionality turns on the state's purpose in helping a class and the actual backwardness of the class.
The most common approach of the United States Supreme Court
in determining whether a classification violates the Equal Protection
Clause is to require that the state justify its classification under either
state interest
the rational basis test or the strict scrutiny/compelling
basis" to
"rational
a
have
test. Generally a classification need only
is based
which
minimal
standard
be valid. The rational basis test is a
of the
to
decisions
on the notion that courts should generally defer
legislature and executive as to classification. But the Court uses the
compelling state interest test to impose a rigorous burden on the state
when classifications produce discrimination against suspect classes8s
such as racial minorities or aliens, groups often characterized by their
lack of political influence and their history of victimization by discrimination.82 Thus the rational basis test is basically a tool for upholding classifications and the compelling interest test often a tool for
invalidating classifications.83 Under the equal protection test as usu79. The conclusion as to which characterization is appropriate is subject
to manipulation by carefully phrasing the description of the promotion or admissions process without altering the substances of the process.
80. For Justice Douglas, constitutionality of a racial classification does not
depend on members of the non-beneficiary class being considered individually
in competition with members of the beneficiary class. The retrial of the
DeFunis case that Justice Douglas wanted to order was not to determine
whether DeFunis was a more qualified applicant than those admitted under
the special admissions program. Availability of a remedy for DeFunis would
actually depend on whether the law school's purpose in classifying applicants
by race was to weigh race itself as a factor in admissions or to provide an
equal opportunity to members of all racial groups.
81. Only the use of the strict scrutiny-compelling state interest test in cases
involving "suspect classes" is discussed because infringement of "fundamental
rights" is not an issue in state preferences in employment and school admissions.
82. It has been argued that a racial classification need only satisfy the rational basis test when the classification is not invidious towards minorities,
DeFunis v. Odegaard, 82 Wash. 2d 11, 507 P.2d 1169 (Wash. Sup. Ct.), vacated,
416 U.S. 312 (1974), when the purpose of the classification is truly benign, "DeProtection, 82 Harv. L. Rev. 1067, 1115-16
velopments in the Law-Equal
(1969) (Hereafter "Equal Protection Developments"), or when the majority
discriminates against itself, Ely, "The Constitutionality of Reverse Racial Discrimination," 41 U. Chi. L. Rev. 723 (1974); cf. Sandalow, "Racial Preferences
in Higher Education: Political Responsibility and the Judicial Role," 42 U.
Chi. L. Rev. 653 (1975).
83. The cases upholding special restrictions on Japanese-Americans during
World War II illustrate that under extreme circumstances at least the federal
government might be able to show a sufficiently compelling interest to justify
1977]
KATZ: INDIA & BAKKE
631
ally formulated and applied by the United States Supreme Court, the
approach is to determine the constitutionality of a classification by
looking at the composition of the classes created by the classification.
The rational basis/compelling interest dichotomy puts primary emphasis on the means of the state in achieving its purpose. This contrasts with the approach of the Indian Supreme Court which puts
primary emphasis on the state's overall policy or purpose, the end
result.
The United States Supreme Court has on occasion forsaken the
rigid rational basis/compelling state interest dichotomy in favor of
a more flexible or intermediate approach. It is too early to say
whether the Court uses only one intermediate approach. In unusual cases, the rational basis test has been interpreted as requiring
that the state show something more than merely any defensible reason
for its classification, with the result that the Court has struck down
the classification as lacking a rational basis.84 Similarly the compelling state interest test has sometimes been applied as a less than
rigorous standard.85 Some Supreme Court justices have favored a
flexible equal protection test as opposed to the rigid rational basis/
compelling state interest tests.86 In the Columbia Law Review's postDeFunis symposium, Professor Greenawalt presented the case for support of an intermediate level of scrutiny for benign racial classifications, classifications to assist a previously disadvantaged group.87 He
a racial classification. Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943).
84. Department of Agriculture v. Moreno, 413 U.S. 528, 533-34 (1973) [the
Court held that the unrelated person provision of ? 3(e) of the Food Stamp
Act of 1964 which excludes households containing an unrelated person lacks
a rational basis and so violates the equal protection component of fifth amendment due process]; Eisenstadt v. Baird, 405 U.S. 438, 447 (1972) [the Court
held that classification based on marital status in a Massachusetts statute making it a crime to sell, lend, or give away contraceptives to an unmarried person
has no rational basis and so violates the Equal Protection Clause].
85. Storer v. Brown, 415 U.S. 724, 736 (1974) [the state interest in the stability of its political system is a compellnig state interest sufficient to uphold
a one-year party-disaffiliation requirement for independent candidates]. See
also DeFunis v. Odegaard, 82 Wash. 2d 11, 507 P.2d 1169 (Wash. Sup. Ct.
1973), vacated, 416 U.S. 312 (1974) [the state interest in compensating for past
discrimination, achieving racial balance in the law student community and reducing the shortage of minority attorneys constitutes a compelling state interest sufficient to justify a preference for some racial groups in law school admissions].
86. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 9899 (1973) (Marshall, J., dissenting); Dandridge v. Williams, 397 U.S. 471, 520Cf. Shapiro v. Thompson, 394 U.S. 618
21 (1970) (Marshall, J., dissenting).
(1969) (Harlan, J., dissenting).
87. Greenawalt, supra n. 11. The New York Court of Appeals applied an
intermediate test focusing on the availability of a less intrusive alternative
to determine whether a medical school special admissions program violated
the Equal Protection Clause. Alevy v. Downstate Medical Center, 39 N.Y.2d
326, 384 N.Y.S.2d 82, 348 N.E.2d 537 (1976).
632

LAW
[Vol. 25
argued that a court should sustain such a classification only when the
classification is made to redress injustices and promote genuine equality.88 The court then should look for a substantial state interest and
the necessity of the classification for preference in achieving that interest. The constitutionality of the preference turns on the purpose
of the state in helping the class of beneficiaries and the necessity of
using the means. Professor Greenawalt's intermediate level of scrutiny is different from the general approach of the rational basis/
compelling state interest dichotomy and, while sharing the Indian
Supreme Court's emphasis on whether the state's purpose is benign
or discriminatory, also focuses on the effectiveness and necessity of
the preference in achieving the state's interest.
IV
State of Kerala v. Thomas provides some insight into the Indian
Supreme Court's interpretation of American law on the issue of
whether a state employment preference for some backward classes
violates the constitutional right of equality. None of the justices relied on American law as an indispensable basis of his decision. Nor
did any justice speculate as to how Kerala v. Thomas would be decided under the constitutional law of the United States. However,
five of the seven opinions in the Thomas case referred to American
cases or legal commentaries or both.
The three opinions dissenting on the constitutional equality issue
made in all only one reference to an American authority. In contrast,
the Advocate General of Kerala in his successful argument relied
basically on Indian rulings and American juridical writings.89 All
four members of the majority cited American juridical writing. Justices Mathew and Krishna Iyer made extensive use of American sources.90 A possible explanation of the imbalance is that, in analyzing
the values underlying American cases and commentary dealing with
the Equal Protection Clause, the Indian Supreme Court found a decision upholding the Backward Classes Exemption to be a better
expression of these values than a decision invalidating the Exemption.
Justice Mathew concluded that the constitutional right of equality
required proportional equality, a standard that was developed by the
United States Supreme Court.9l Compensatory state action to create
88. Greenawalt, supra n. 11 at 560.
89. Id. at 536 (J. Krishna Iyer).
90. Chief Justice Ray referred to Tussman and tenBroeck, "The Equal Protection of the Laws," 37 Calif. L. Rev. 341 (1949), as a more complete discussion of the theory followed by the Indian Supreme Court that the doctrine
of reasonable classification resolves the contradictory demands of legislative
specialization and constitutional generality. 1976All India Rptr. S. Ct. at 497.
91, 1976All India Rptr. S. Ct. at 516-17,
1977]
KATZ: INDIA & BAKKE
633
equality among people who are otherwise unequal because of disparities in wealth, education and social environment is the essence of proportional equality. Justice Mathew pointed to Griffin v. Illinois92 and
Douglas v. California93 as early United States Supreme Court decisions requiring proportional equality under the 14th Amendment,
and Harper v. Va. Bd. of Elections'4 as a later case applying the
same theory of equality. These cases held that providing appellate
review without a free transcript for all criminal defendants, denying
free counsel for frivolous appeals to all criminal defendants, and levying a poll tax on all voters violated the Equal Protection Clause. Despite Justice Harlan's view that numerically equal treatment cannot
violate the Equal Protection Clause,95 the U.S. Supreme Court in these
cases required states to use a proportional standard to bring about
equality in fact.96 Justice Mathew transplanted the approach of the
U.S. Supreme Court to India because he believed that this approach
correctly implemented the meaning of equality.
Justice Krishna Iyer's approach in Kerala v. Thomas paralleled
the approach suggested in the Harvard Law Review's 1969 article, De92. 351 U.S. 12 (1956). The Court held that if a state makes appellate
review available to criminal defendants, this cannot be done in a way that
denies review solely on the basis of indigency. Therefore, the state must provide free transcripts to indigents on appeal.
93. 372 U.S. 353 (1963). The Court held that even though providing counsel only where appointment of counsel would be "of advantage to the defendant or helpful to the appellate court" is a legitimate state objective, a system
which provides free counsel to indigent criminal defendants only for selected
appeals denies equal protection because the well-to-do can always afford an
attorney.
94. 383 U.S. 663 (1966). The Court held that a poll tax that is applied
indiscriminately to all potential voters violates the equal protection right of
indigents.
95. See Griffin v. Illinois, 3'51U.S. 12, 34-36 (1956) (Harlan, J., dissenting);
Douglas v. California, 372 U.S. 353, 361-63 (1963) (Harlan, J., dissenting). See
also Equal Protection Developments, n. 82 supra at 1166, 1177-81.
96. Justice Mathew believes that the United States Supreme Court has only
gone half way in guaranteeing equality for blacks because the Court has not
sufficiently applied the theory of proportional equality. He wrote:
Beginning most notably with the Supreme Court condemnation of
school segregation in 1954 the United States has finally begun to correct the discrepancy between its ideals and its treatment of the black
man. The first steps, as reflected in the decisions of the courts and
the civil rights laws of Congress merely removed the legal and quasilegal forms of racial discrimination. These actions while not producing true equality, or even equality of opportunity, logically dictated
the next step: positive use of government power to create the possibility of a real equality. In the words of Professor Lipset: "Perhaps
the most important fact to recognize about the current situation of
the American Negro is that (legal) equality is not enough to insure
his movement into larger society." Lipset, The American Democracy
49.
1976 All India Rptr. S. Ct. at 518-19.
634
[Vol. 25
Protection,97 from which he quoted

velopments in the Law-Equal
extensively.98 Both said that a suspect classification is actually benign
if it is used in an attempt to achieve an equal position in society for all
races, castes or tribes. They agreed that if a court is convinced that the
purpose of the measure is benign, the state should be free to choose any
means reasonably related to achieving equality. Justice Krishna Iyer
then discussed Schlesinger v. Ballard99 as illustrative of the U.S.
Supreme Court's understanding of the importance of separate classifications of unequal groups in government employment for the purpose
of eliminating gross group inequality and attaining general equality.
Justice Krishna ryer believed that the position of backward classes in
the United States and India is comparable, and the values underlying
constitutional equality are the same, and so looked to and found support for his approach to the constitutional equality issue in the American juridical approach to equal protection.
V
A major reason for the debate in the U.S. over the constitutionality of state preferences for backward classes, and for the Supreme
Court's unwillingness to resolve the issue in DeFunis v. Odegaard, is
the controversy over the relative values of economic betterment of
backward classes and maintenance of a strict meritocracy. In Thomas,
the Indian Supreme Court decided that constitutional equality favored
the former. The justices' opinions on the competing policy interests
provide a point of reference for Americans to reconsider their own
balancing.
Justice Mathew described the underlying social policy justification of the decision that equality of opportunity is the right of all
individuals to have comparable possibilities for development of their
capabilities and not the right to be treated by uniform standards:
The ultimate reason for the demand of equality for the
members of backward classes is a moral perspective which affirms the intrinsic value of all human beings and calls for
a society which provides those conditions of life which men
need for development of their varying capacities.100
The defense of Kerala v. Thomas as an appropriate application of this
social-political perspective rested on several grounds: for historical
97. Equal Protection Developments, n. 82 supra.
98. 1976 All India Rptr. S. Ct. at 537-38.

99. 419 U.S. 498 (1975). The court held that a law allowing women offi-
cers in the United States Navy a longer period of commissioned service than
male officers did not violate the equal protection right of the males. The court
reasoned that Congress may rationally have believed that, because women officers have less opportunity for promotion, a longer period of tenure for
women is consistent with providing equal opportunity for career advance-
ment.
100. 1976 All India Rptr. S. Ct. at 521.
1977]
KATZ: INDIA & BAKKE
635
reasons, members of backward classes have no opportunity to develop

their intellectual capabilities.10' Therefore backward classes cannot
succeed in direct competition.'02
To maintain uniform standards
would be to perpetuate inequality.'03 The preference allows members
of backward classes to compete with historically stronger sections of
society.104 The constitutional right of equality of opportunity was designed to allow backward classes to use law to achieve collective justice rather than being forced to resort to violence.'05
The dissenting justices' most persistent criticism was that the
Court's holding would result in the erosion of the right of equality.106
The majority's response was that the right of equality allows state
employment preferences only in favor of backward classes?07 and
then only when strict conditions are satisfied.'08 The Court will prevent erosion of the right of equality.'09 A corollary to the erosion
argument is the argument that, given the realities of political life,
some groups not eligible for preferences will nonetheless get preferences. The majority responded that the Court will use the constitutional
right of equality to strike down preferences granted because of governmental favoritism"l or granted in response to the demands of
Furthermore, the mere possibility of
politically powerful groups.ll
abuse is not a reason to invalidate a state regulation.ll2
The dissenting justices also argued that promotion preferences
based on backwardness would undercut the efficiency of the government administration. Preferences are inconsistent with the intention
both of the examinations and the Constitution's guarantee of equality
exclude considerations extraneous to merit and efof opportunity-to
The
large number of 1972 promotees who had not passed
ficiency.l13
the examinations was cited as particularly incompatible with the
maintenance of efficiency.l4
The majority argued that the tests only had limited usefulness
101. Id. at 556 (Fazal Ali, J.).
102. Id. at 501 (Ray, C.J.).
103. Id. at 539 (Krishna Iyer, J.).
105. Id. at 529-30 (Krishna Iyer, J.).
106. Id. at 509 (Khanna, J.), 522-23 (Beg, J.), 543 (Gupta, J.).
107. Id. at 499-500 (Ray, C.J.).
108. Id. at 556 (Fazal Ali, J.). Justice Fazal Ali also makes the unconvincing argument that the Court has previously allowed classifications that were
more damaging to the right of equality than the classification under the Backward Classes Exemption. Id.
109. Id.
112. Id. at 520 (Mathew, J.).
113. Id. at 508 (Khanna, J.), 522 (Beg, J.).
114. Id. at 504 (Khanna, J.).
636

LAW
[Vol. 25
in terms of actually measuring competence.ll5 For example, the tests

did not measure responsible and responsive service.16 Also, the tests
measured superior performance, not basic proficiency; thus waiving
the test requirement is a controlled risk as opposed to a compromise
of minimum efficiency.117 The majority justices pointed to the facts
to show that the Backward Classes Exemption did not adversely affect the quality of the state service: the promoted scheduled caste
and tribe employees did not perform unsatisfactorily,ll8 the preferred
candidates had greater seniority and other virtues,119 the preference
helped only the most qualified members of scheduled castes and
tribes,120 and the promotees would eventually be required to pass the
tests.121
Justice Krishna Iyer, more than the dissenting justices, argued

that preferences in favor of backward classes fail to achieve their
purpose.122 He said, first, that preferences mostly aid the elite of the
backward classes. Second, in a democracy, the most vocal groups
whose burden of backwardness has been substantially lightened will
benefit from preferences. Third, the preferences will have the effect
of obscuring from public view the most needy people and prevent
their integration into society.
Other criticisms of the effectiveness of preferences in India and
the United States were not considered sufficiently important by the
Indian Supreme Court justices to be mentioned in their opinions. For
example, the Court did not discuss overinclusiveness or underinclusiveness, but found that the state had the freedom to include and exclude beneficiaries based on the backwardness of the group into which
they were born.123 The Court did not discuss the difficulty of deter115. Id. at 520 (Mathew, J.), 536 (Krishna Iyer, J.). See also id. at 523
(Beg, J.).
117. Id. at 526-27 (Krishna Iyer, J.).
118. Id. at 523 (Mathew, J.). There was only cursory mention of how capable the scheduled caste and scheduled tribe promotees were as upper division clerks, possibly because no evidence other than opinion was available on
this point.
120. Id. at 501 (Ray, C.J.).
121. Id. at 502 (Ray, C.J.), 552 (Fazal Ali, J.).
122. Id. at 531-32. Justice Krishna Iyer referred to research by the A.N.
Sinha Institute of Social Studies, in Patna, as revealing a dual society among
scheduled castes and tribes. A small elite secures all of the benefits from
preferences while the special concessions do not touch the large majority. Also
an unknown number of individuals fraudulently claim to be within the
classes designated as beneficiaries of preferences. Isaacs, India's Ex-Untouchables 115 (1965). Justice Krishna Iyer felt that research was necessary to
determine the validity of these criticisms of the effectiveness of preferences
and administrative re-evaluation and innovation in the programs were the
proper means of refocusing programs toward the neediest people.
123. After Kerala v. Thomas, the Supreme Court of India held that a state
in distributing special benefits to backward classes can exclude well-off mem-
1977]
KATZ: INDIA & BAKKE
637
mining whether a class is sufficiently backward to merit a preference

from the executive's point of view or to be eligible for a preference
in light of the constitutional limit of the right to equality.124 Nor did
the Court discuss the possible stigmatizing effect of preferences, or the
argument that Kerala's preference aided individuals but had an insignificant impact on the economic status of the backward classes.
One can argue that when state preferences benefit backward
classes, the most affluent in the society are able to compete successfully for the smaller number of available slots so that the backward
classes advance at the expense of the groups just above themselves
in economic and educational achievement. The Court did not discuss
that issue and, in fact, dealt only briefly with the social policy aspects
of whether state-sponsored preferences unfairly burden individuals
This was of course the
who are directly injured by the preference.125
basic constitutional question in plaintiff's attack upon Kerala's Backward Classes Exemption, but the Court apparently was willing to allow non-discriminatory means of distributing the burden of economic
betterment of backward classes.
The Indian justices all agreed that backward classes, regardless
of their innate abilities, cannot successfully compete with more
advanced sections of the population. The government should and is
attempting to better the social position of these classes. The government will not accomplish this betterment easily and should be free
to experiment with different means of aiding them. Any society
has finite resources, so some individuals must necessarily be injured when backward classes get an increased portion of the resources. The social policy debate within the Indian Supreme Court concentrated on the societal costs of allowing preferences rather than on
the limitations of such preferences as a social tool or the burden that
preferences impose on non-preferred candidates. The traditional justifications for maintaining strict meritocracy in lieu of standards
which aid candidates from backward classes are that meritocracy
bers of a tribe from the scheduled tribe classification. Inc. Tax Off'r, Shillong
v. R. Rokin Roy Rymbai, Civ. App. No. 5792549,1975 (Supreme Court of India,
17 Feb. 1976).
124. In India, Presidential notification of some backward classes including
scheduled castes and scheduled tribes serves as a widely accepted starting
point in determining which groups are eligible for preferences. In the United
States the U.S. Civil Rights Commission or some other official body could be
authorized to publish periodically non-binding regional lists of backward ethnic groups in the United States.
125. In a decision relying heavily on legislative history, the U.S. Supreme
Court held that Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981
protect whites in addition to blacks against racial discrimination by an employer. McDonald v. Santa Fe Transportation Co., - U.S. -, 96 S. Ct. 2574
(1976). This case suggests that the U.S. Court might give more weight than
the Indian Court did to the policy arguments that preferences unfairly burden
candidates from the non-backward classes.
638
[Vol. 25
promises competition based on individual qualifications of the candiThe Indian

dates126 and high quality services for the citizenry.
Supreme Court found delivery of high quality services to be a persuasive argument for maintaining meritocracy, but was not convinced by
the fair competition arguments.127 Thus the Court's policy debate
focused on whether an erosion of the equality right or a deterioration
of government services would follow a constitutional interpretation
upholding preferences for backward classes.
CONCLUSION
The four-three split within the Indian Supreme Court on the issue
of whether a state-sponsored preference for scheduled castes and tribes
violates the equality right of the non-beneficiary class confirms the
difficulty of resolving constitutional interpretations of the equality
right in a liberal democratic political system. In Kerala v. Thomas
the Court did not decide the precise constitutional issue raised by
state-sponsored preferences for racial and ethnic groups in the United
States. The majority of the Supreme Court concluded that a preference for scheduled castes and tribes was not discrimination based on
caste or race and so did not raise the possibility of violation of the
Anti-Discrimination Clause. The issue of the extent to which the
social and economic position of ex-untouchables and tribals in India is
comparable to that of Blacks, Native Americans or other ethnic groups
in the United States is beyond the scope of this article. In fact the
Indian justices themselves viewed the question whether the beneficiary classes were "castes" and "tribes" as subsidiary, each justice's
answer depending on his view of whether the Backward Classes Exemption violated the Equality of Opportunity Clause.
The constitutional context of the Equality of Opportunity Clause
provides support for the Indian Court's decision, whereas the U. S.
Constitution contains no comparable language helpful in deciding
whether the Equal Protection Clause permits racial preferences.
The Indian Constitution uses the classification "scheduled castescheduled tribe," affirms that the economic betterment of these groups
is important, states that their claims should be considered in appointments to government employment, and specifically allows the reservation of government jobs for backward classes. Unlike the Indian Constitution enacted in 1950, the United States Constitution and the 14th
Amendment were enacted at times of limited and peripheral government involvement in the betterment of backward classes. Thus the
126. The entire Supreme Court rejected the view that the promotion tests
should be the Court's sole measure of competency.
127. Justice Douglas' view is that equal protection guarantees fair competiThus admission to law school by drawing lots
tion and not a meritocracy.
DeFunis v. Odegaard, 416 U.S.
apparently would not violate equal protection.
312, 344 (Douglas, J., dissenting).
1977]
KATZ: INDIA & BAKKE
639
history of these two documents and the scope of their subject matter
prevent the U.S. Constitution from providing as much guidance for
the meaning of the Equal Protection Clause as the Indian Constitution
does for the meaning of equality. The Indian Supreme Court says
that the Equality of Opportunity Clause permits preferences only for
underrepresented, severely backward classes, to provide no more than
adequate representation, and not incompatible with administrative
efficiency. These limits largely correspond to language found in the
Reservation Clause and Art. 335.
Nonetheless the practical impact of Kerala v. Thomas is to resolve
the Bakke issue in India. In light of the broad sweep of the opinions
in Kerala v. Thomas, clearly a racial or caste preference in favor of
a severely backward, underrepresented class is consistent with the
constitutional right of equality. When the justices analyzed American case law, their concern was to evaluate the approach and
reasoning of the U.S. Supreme Court and not the specific applications
of the legal rule. This is the appropriate view for American courts
to take of Kerala v. Thomas. The underlying justification of the
Thomas decision, and a point at which all four of the majority justices'
opinions converged, is that constitutional equality is a constructive
concept and, therefore, allows state preferences for backward classes.
The historical forces that contribute to backwardness-geographical
it inevitable that
isolation, immigration and discrimination-make
backwardness will often characterize racial, caste and ethnic groups.
As a constructive concept, the equality right should not be interpreted
to fall most heavily on those whom the drafters intended to protect.
Equality in state action basically means the uniform distribution of
benefits. However, in appointment to government service, the Indian
Court found that equality itself contains two exceptions: classification to favor competence and to redress rooted inequality.
Thus
neither preservation of meritocracy nor achieving actual equality is
the sole purpose of the equality right. Redressing deprivation is no
less consistent with equality than rewarding competence.
The Indian Court's approach suggests three lessons for the United
States judiciary. First, the Indian justices rightly tried to form a
foundation for their decision by extracting the values underlying
American equal protection and understanding the purpose of constitutional equality. Second, this starting point in deciding the constitutionality of state classification was to determine the result of the
classification. Cases such as Yick Wo v. Hopkins,128 Brown v. Board
of Education,129and Swann v. Charlotte-Mecklenburg Board of Education130 strongly support an equal protection analysis that initially
128. 118 U.S. 356 (1886).
129. 349 U.S. 294 (1954).
130. 402 U.S. 1 (1971).
640
determines whether the classification impedes actual equality. Third,

it rejected the notion that the right of equal protection was intended solely to insure uniform distribution of government benefits
or to protect meritocracy. The rational basis/compelling state interest
approach and Justice Douglas' racially neutral classification approach
emphasize the constitutionality of the state's means. Whether the
state's end is consistent with the purposes of the equality right should
be at least equally decisive in the constitutional determination. The
approach of the Indian Supreme Court was to interpret the equality
right as protecting, not preventing, actual equality.
The Indian Supreme Court's use of the reasonable basis test for
equality has preserved the court's flexibility in establishing situations
under which different types of classifications are permissible. The
Court said that a state employment preference has a reasonable
basis only if the beneficiary class is severely backward, underrepresented, and will receive no more than adequate representation,
and the preference will not prevent the maintenance of administrative efficiency. This more flexible approach is in contrast to the
rigid rule urged upon the U.S. Supreme Court by those who argue
that constitutionality of a classification should depend on whether the
classification is traditionally suspect and therefore automatically subject to strict scrutiny or is a classification based on factors such as
wealth which are valid upon the showing of a rational basis. Adhering to this formulation of the equal protection test might prevent a
thorough analysis of the competing interests on the issue of the constitutionality of racial preferences in employment and admission to
educational institutions.

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Benign Preferences: An Indian Decision & the Bakke Case

Author(s): Alan M. Katz

Benign Preferences: An Indian Decision

In State of Kerala v. Thomas,l the Supreme Court of India

THE AMERICAN JOURNAL OF COMPARATIVE LAW

The significance for India of the Court's holding in Thomas is that,

Memorandum of the Government of India on the Report of the Backward

the term "backwardclasses." When "backwardclasses" are defined to include

nomadic, and semi-nomadic

1980. Additionally, the government service is experimenting with pre-exam

KATZ: INDIA & BAKKE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

views of what principles of American case law should underlie the

KATZ: INDIA & BAKKE

Relating to Certain Classes. The opinions in Thomas discussed the relation-

THE AMERICANJOURNALOF COMPARATIVE

KATZ: INDIA & BAKKE

in the making of appointments to services and posts in

THE AMERICAN JOURNAL OF COMPARATIVE LAW

was not a member of a preferred backward class.29 On this issue

Backward Classes Exemption not violative of equality of opportunity.

not within sub-art. 16(4).

If the real basis of classifica-

KATZ: INDIA & BAKKE

has a reasonable basis if the classification is founded on a substantial

1976 All India Rptr. S. Ct. at 497, 499.

THE AMERICAN JOURNAL OF COMPARATIVE LAW

the constitutional prohibition of discrimination on grounds of race or

caste is a designation used because it is indicative of social and educational

issue of what constitutes "adequate representation." The only criterion that

KATZ: INDIA & BAKKE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

represented in the state service does not violate Art. 14 or 16 even

KATZ: INDIA & BAKKE

THE AMERICAN JOURNAL OF COMPARATIVE LAW

view, warned that "(e)fficiency means, in terms of good government,

KATZ: INDIA & BAKKE

Art. 46 of the Constitution directs the states to promote with

Backward Classes Exemption would require justifying a tax exemption for

THE AMERICANJOURNALOF COMPARATIVE

unacceptable. However, an American court trying to decide the extent

KATZ: INDIA & BAKKE

American courts on the equal protection clause of the American Constitution.67

A Comparison of Approaches to Benign Racial Classification.

THE AMERICAN JOURNAL OF COMPARATIVE LAW

necessarily imply rigidity in what has already been described as a

KATZ: INDIA & BAKKE

The Indian Supreme Court's approach for determining whether

75. 416 U.S. at 334.

78. 416 U.S. at 326, 336.

THE AMERICAN JOURNAL OF COMPARATIVE LAW

KATZ: INDIA & BAKKE

THE AMERICANJOURNALOF COMPARATIVE

KATZ: INDIA & BAKKE

review available to criminal defendants, this cannot be done in a way that

THE AMERICAN JOURNAL OF COMPARATIVE LAW

Protection,97 from which he quoted

98. 1976 All India Rptr. S. Ct. at 537-38.

100. 1976 All India Rptr. S. Ct. at 521.

KATZ: INDIA & BAKKE

reasons, members of backward classes have no opportunity to develop

THE AMERICANJOURNALOF COMPARATIVE