AFFIRMATIVE ACTION

Meaning:
The terms affirmative action and positive action refer to policies that take race, ethnicity, or
gender into consideration in an attempt to promote equal opportunity or increase ethnic or
other forms of diversity. The focus of such policies ranges from employment and education
to public contracting and health programs. The drive towards affirmative action is twofold: to
maximize diversity in all levels of society, along with its presumed benefits, and to redress
perceived disadvantages due to overt, institutional, or involuntary discrimination.

Need:

To alleviate discriminatory practices against certain historically oppressed groups.

Affirmative action is a coherent packet of measures, of a temporary character, specifically

aimed at correcting the position of the members of a target groups in one or more aspects of
their social life, in order to obtain effective equality.

Basis of Affirmative Action:

Caste in India and race in the USA form the social basis on which the affirmative action
program in the two countries is based.

Caste in India

Estimated to be over 2500 years old, the caste system has undergone many transformations,
from the ancient varna system to the contemporary jati system. The varna system divided the
population initially into four and later into five mutually exclusive, endogamous, hereditary
and occupation specific groups: the Brahmins, Kshatriyas, Vaisyas, Sudras and Ati- Sudras.
The last two comprised all castes doing menial jobs with the latter being considered
“untouchables”, in that even their presence was considered polluting and thus was to be
avoided.

While the caste system is conventionally associated with Hinduism, all religions in India,
including Christianity and Islam, display inter-group disparity akin to a caste system leading
to the hypothesis that perhaps caste was a system of social stratification in pre-modern India.
Being at the bottom of the caste hierarchy, the former untouchables not only are poorer, they
continue to be targets of discrimination, oppression, violence and exclusion. The names of
these jatis are listed in a government schedule and thus in official literature these castes are
referred to as Scheduled Castes, or simply as SCs.

In addition to the caste system, more than 50 million Indians belong to tribal communities
that are often distinct from the Hindu religious fold. These are the Adivasis, (literally,
original inhabitants) who have origins that precede the Aryans and even the Dravidians of the
South. Most live on the margins of existence, excluded from the mainstream development
process. These tribes are also targets of affirmative action, similarly notified in a government
schedule and hence referred to as Scheduled Tribes or STs.

Race in USA.
While race is ascriptive in that it is primarily based on skin color (also on other phenotypical
attributes such as quality and color of hair, nasal index, type of lips etc), and thus, is more
easily identified. History of the ethnic conflict in the US goes back to its foundation as a
nation or its ‘discovery’ by white European settlers. Native Americans were subjected to
violent dispossession as the settlers moved in and gained control over land, the most precious
natural resource. The subsequent economic development was based on black slave labor
forcibly brought from Africa.

Affirmative Action in India

Initially it was the pre-independence British rule which introduced affirmative action policies
to India and has kept on growing ever since. India has a quota based affirmative action
programme, which is called the ‘reservation system’.

Provisions Under constitution of India:-

The reservations for the backward classes can be broadly categorized into: political,
educational and employment.

For the first, the Constitution provides for reservation of seats in proportion to their numbers
for the SCs and the STs in the Lok Sabha (The Lower House) in its Article 330, and in the
Legislative Assembly of the State in Article 332. These provisions do not exist for the OBCs,
which indicate that the principal categories for the affirmative action are the SCs and STs
according to the Constitution.

For the second, an implication exists in the constitutional provision - Article 15(4), which
allows the state to make any special provision for the advancement of any socially and
educationally backward classes of citizens or for the SCs and STs. 15(3) provides special
power to the Parliament to make special provisions for women and children

For the third, the Constitutional provisions as modified and simplified from time to time are,
Articles 16(4), 16(4-A) [promotion], 16(4-B) [carry forward], 320(4) and 335[efficiency].
These articles provide explicitly for reservation in public employment for the backward
classes and the authority of the State to make any required changes as and when required.

341 – List of scheduled caste

342 – list of scheduled tribes

Execution of reservation policy

Unlike in the USA, in India there is no national enforcement mechanism for the reservation system,
even though there is a Ministry for Social Justice in the Central Government. While civil action is not
an available remedy for denial of due benefits, the alternative is in the form of a writ jurisdiction
under Article 32 and 226 of the Indian Constitution.

Judicial Decisions

1. State of Madras v. Smt. Champakam Dorairanjan (1951): In this case the Hon'ble
Supreme Court of India held that caste based reservations as per Communal Award
violates Article 15(1). Yet, First constitutional amendment as to Art. 15 (4) was
brought.
 2. M R Balaji v. State of Mysore (1963): The Supreme Court put a 50% limit on
reservations in this ruling. It was also held that the backwardness under Article 15 (4)
must be social and educational. The Hon'ble Gajendragadkar. J observed on page 454
that "economic backwardness might have contributed to social backwardness...." The
classification of ‘backward and more backward’ was also made in this case.
3. Indra Sawhney & Ors v. Union of India (1980): The question that who is the other
backward classes came up for consideration again in this case. It was held that in the
reservation for the backward classes the creamy layer should be excluded. the Court
holds that Article 16(4) of the Indian Constitution was not an exception to 16(1) but
rather merely an explicit statement of classifications and provisions for backward
classes that were already implicitly stated in Article 16(1). By interpreting affirmative
action not as the exception to equal treatment but as part of equal treatment itself,
India has adopted a substantive notion of equality.
4. P. A. Inamdar v. State of Maharashtra (2005): Court gave a clear verdict against
reservation of seats for the Scheduled Castes, Scheduled Tribes and Other Backward
Classes (SCs, STs, and OBCs) in the un-aided private and minority higher education
institutions
5. M. Nagraj & Ors v. Union of India and Ors (2007): This case dealt with the 77th
Constitutional amendment, introducing Articles 16(4 A) and (16 4B). Amendments
were held as constitutionally valid. Article 16(4A and B) are inserted into the flow of
article 16, and they do not alter the structure of Article 16(4). The case laid down 3
factors for reservation in public employment: 1. Backwardness in state 2. Overall
inefficiency in administration of state 3. Inadequacy in representation in services.

6. Reconsideration of Nagraj case (2018)

In the 2006 verdict, the Supreme Court imposed three conditions – identification of
backwardness, compelling reasons and inadequate representation – for granting quota
in promotions to employees from Scheduled Caste and Scheduled Tribe communities.
The court ruled that if reservation is implemented it must not breach the 50% ceiling
or “obliterate the creamy layer”.
The apex court reversed the finding in Nagaraj judgment that stated states required to
collect quantifiable data to prove backwardness, saying it was contrary to the decision
in Indira Sawhney case. There was no need to test the backwardness of employees
from these communities while granting promotions as the court itself had said in the
1992 Indra Sawhney case that the test of backwardness does not apply to them. The
Supreme Court on Wednesday, however, did not comment on the two other
conditions.

Affirmative Action in USA

No specific provision in constitution. Mixture of Legislative Executive & Judiciary.

Legislative

In 19th Century, Southern States not ready to abolish slavery, decided to secede which led to
civil war in state.

After the end of the Civil War in 1865, the US Congress passed the reconstruction
amendments (13th, 14th, 15th) to abolish slavery.
The Thirteenth Amendment to the United States Constitution abolished slavery and
involuntary servitude, except as punishment for a crime.

The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted

citizenship to “all persons born or naturalized in the United States, No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 15th Amendment to the Constitution granted AfricanAmerican men the right to vote

by declaring that the "right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any state on account of race, color, or previous condition
of servitude."

The Twenty-fourth Amendment (Amendment XXIV) of the United States Constitution

prohibits both Congress and the states from conditioning the right to vote in federal
elections on payment of a poll tax or other types of tax.

The U.S. Supreme Court ruled 6–3 in Harper v. Virginia Board of Elections (1966) that poll taxes for any
level of elections were unconstitutional. It said these violated the Equal Protection Clause of
the Fourteenth Amendment.

Civil Rights Act 1954: prohibited racial discrimination in any office with 25+ employees

The Civil Rights Act 1957 created the independent U.S. Commission on Civil Rights.
Although the Commission was limited to fact-finding, its reports helped shape the
breakthrough Civil Rights Act of 1964, which also provided the Commission with greater
authority.

The Civil Rights Act 1964 expressly banned discrimination based on race, color, religion,
sex, or national origin in employment practices; ended unequal application of voter
registration requirements; and prohibited racial segregation in schools, at the workplace, and
in public accommodations.

The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United

States that prohibits racial discrimination in voting.

The Civil Rights Act of 1968, also known as the Fair Housing Act, is a landmark part of
legislation in the United States that provided for equal housing opportunities regardless of
race, religion, or national origin and made it a federal crime to "by force or by threat of force,
injure, intimidate, or interfere with anyone … by reason of their race, color, religion, or
national origin."

Executive

The U.S. Department of Justice Civil Rights Division is the institution within the federal
government responsible for enforcing federal statutes prohibiting discrimination on the basis
of race, sex, disability, religion, and national origin.

The U.S. Commission on Civil Rights is a bipartisan, independent commission of the United
States federal government, created in 1957, that is charged with the responsibility for
investigating, reporting on, and making recommendations concerning civil rights issues in the
United States.

Equal Employment Opportunity Commission. The Equal Employment Opportunity

Commission (EEOC) was established to enforce provisions of Title VII of the Civil Rights
Act of 1964. Title VII forbids discrimination in the workplace based on race, age, disability,
religion, sex, or national origin.

Judicial Decisions

The Supreme Court upheld “separate but equal” facilities in the infamous case of Plessy v.
Ferguson (1896), where a man who claimed to be seven-eighths white was required under a
state law to ride in a separate train car from whites. In another landmark case of Brown v.
Board of Education (1954), the Court struck down the separate but equal practice, here in
the context of lawsuit regarding segregated state-run public schools. The Court’s decision
cited sociological studies in an attempt to demonstrate that the separate facilities were
inherently unequal and irreparably harmed blacks. The ruling sparked an era of social
upheaval in the US.

Browder v. Gayle (1956), the District Court ruled that "the enforced segregation of black
and white passengers on motor buses operating in the City of Montgomery violates the
Constitution and laws of the United States" because the conditions deprived people of equal
protection under the Fourteenth Amendment. The court further enjoined Alabama and
Montgomery from continuing to operate segregated buses.
The case was not completed until it was heard later that year by the US Supreme Court, as the
state and city appealed the decision. On November 13, 1956, the Supreme Court upheld the
District Court's ruling and ordered Alabama and Montgomery to desegregate its buses. One
month later, on December 20, after Gayle was handed official written notice by federal
marshals, the Montgomery buses were desegregated
Bakke v. Regents of the University of California (1978), a plurality of the Supreme Court
held that a university’s desire to achieve a diverse student body was a compelling state
interest. However, admissions officers were prohibited from using quotas to achieve this
goal.
Grutter v. Bollinger (2003), was a landmark case in which the United States Supreme Court
upheld the affirmative action admissions policy of the University of Michigan Law School.
Gratz v. Bollinger, (2003), was a United States Supreme Court case regarding the University
of Michigan undergraduate affirmative action admissions policy. In a 6–3 decision
announced on June 23, 2003, Chief Justice Rehnquist, writing for the Court, ruled the
University's point system's "predetermined point allocations" that awarded 20 points towards
admission to underrepresented minorities "ensures that the diversity contributions of
applicants cannot be individually assessed" and was therefore unconstitutional.
Comparative Analysis in India & USA
1. The important difference which lies between the USA and India is that affirmative
action is not enshrined in the constitution of the USA, nor is it quota-based. Thus, as a
result, the effect is that even executive orders and/or court judgements can either
strengthen or dilute the affirmative action program with the passage of time.
2. People of U.S, being more aware of their rights, are in a position to seek legal
remedies in the Court of law and also seek enforcement of their rights in case the
employers acted discriminately. Whereas in India, people belonging to S.T/S.C., are
hardly aware of their rights, as a result of which, the chances of their going to the
 Court of law and seeking enforcement of their rights, seems a view which is unaware
of the reality.
3. The Indian Constitution proclaims equality as a sovereign virtue. But realizing that
equality in India has to be achieved against a historical background of entrenched
social, economic and political inequalities created and justified by a caste-based
hierarchical social order, it stipulates a number of affirmative action or positive
discrimination policies and programs in the areas of politics, public employment and
education for overcoming these inequalities. In United States, firstly there was
nothing like equality of opportunity in matters relating to public employment.
Secondly, the situation was actually opposite because of the existence of “spoils
system”, which was based on the theory that no one had the right to public
employment and hence, it was far from the idea of public employment being a matter
of right.
Critics of affirmative action 
 Affirmative action was created to ensure fair admission practices and to rectify a long
period of racial discrimination. The policy is outdated, however, and causes a form of
reverse discrimination by favoring one group over another, based on racial
preference rather than academic achievement. Further, there is concern that minority
groups may be stigmatized and treated differently by peers and professors who may
believe that the success of minority groups in higher education institutions is
unearned.
 Affirmative action policies lower standards and make students less accountable. If
standards for test scores, grade point average, etc. are lowered for underrepresented
groups, it is argued that these students will only strive to meet the lower requirements.
 Affirmative action policies do not necessarily help economically disadvantaged
students. A study by the Hoover Institution found that affirmative action tends to
benefit middle- and upper-class minorities.