To secure the goal of equality of opportunity among disadvantaged groups in society, the two largest democracies in the world have devised very different approaches. Contrary to the popular notion that they are policies of a similar kind, the recently scrapped affirmative action policy of the United States and the reservation system of India vary extensively in terms of their background, basis, legal status, and scope. This article aims to provide a more thorough explanation of the backgrounds, key distinctions, and impacts of both programmes.
Historical Facets and Developments
The history of affirmative action dates back to 1978, when the SCOTUS in Regents of the University of California vs Bakke considered the constitutionality of affirmative action policies for the first time. In this case, Allan Bakke, a white applicant, was denied admission to Davis Medical School (University of California), which had reserved a certain number of seats for applicants belonging to minority groups. Alan argued that this provision violated his rights. In its judgment, the SCOTUS noted that although university admission quotas are inconsistent with the Equal Protection Clause of the 14th Amendment, the cause of diversity in education is a compelling state interest and should thus allow consideration of race, among other things, as a factor in university admission. Alan’s particular case was adjudged in his favour, but at the same time, it provided legal status to the affirmative action policy. The court held that affirmative action in college admissions is valid in principle until it sets a stringent racial quota.
After its implementation, the policy was often criticised for violating the constitutional rights of citizens. This culminated in the recent suit by a conservative group named Students for Fair Admissions which sought to nullify affirmative action. The group posited their demands on the grounds that the US Constitution prohibits discrimination based on race, summed up in their motto, ‘racial classification and preference in college admissions are unfair, unnecessary, and unconstitutional.’ In June 2023, The Supreme Court Of The United States (SCOTUS) in Students for Fair Admissions vs Harvard legally proscribed the affirmative action policy at two of the most renowned institutions for higher education in the US (Harvard College and the University of North Carolina).
The Indian reservation system, on the other hand, has been in existence since the enactment of the Indian Constitution in 1950 which reserved seats for the scheduled castes and scheduled tribes as a fundamental right, and was further extended to include other marginalized groups through subsequent amendments to the Constitution. Ironically, a month after affirmative action was struck down in the US, the Supreme Court of India, in the case of Advocate Sachin Gupta vs Union of India, rejected a plea to phase out the reservation system in India and additionally imposed a cost of ₹25000 on the petitioner, terming it a deterrent against ‘frivolous litigation’.
Divergence and the Resultant Differences
The diverging point and the most striking difference between these two policies is that while the Indian reservation system is placed within a rights framework, the affirmative action policy, on the other hand, is merely an enabling act meant to provide a benefit. The former enjoys legal enforceability and is justiciable before courts of law, due to which it has regularly been protected by the government and courts despite numerous challenges and objections against it. As a case in point, the Mandal Commission‘s recommendations in 1990 (to extend reservation’s benefits to other backward classes) led to widespread protests and demonstrations, with some parts of the country witnessing violence and self-immolation by protestors. However since the policy had its root in the fundamental rights of the Indian constitution, the extended reservation remained in force. To pacify the situation, the government held negotiations with various stakeholders and repeatedly reaffirmed the constitutional validity of the Mandal Commission’s recommendations, emphasizing their commitment to social justice and inclusion.
Another significant distinction lies in their scope. The reservation system is much wider; it covers an extensive range of classes and provides opportunities in fields beyond education. It reserves a certain number of seats for marginalized groups in government job opportunities, promotions, and election contestation as well. Moreover, the number of classes covered under the reservation system has seen an uptick over time. Originally the constitution granted reservation only to scheduled castes and scheduled tribes, but socially and educationally disadvantaged classes as well as economically weaker sections were included under the reservation system through the 93rd Amendment Act (2005) and 103rd Amendment Act (2019) respectively.
The introduction of ‘Economically Weaker Sections (EWS)’ reservation in India created another significant point of difference between these policies. While the Indian reservation system sets out a 10% reservation based on the financial status of a person, there is no such provision in the US. The EWS quota offers reservations to economically underprivileged persons who are not already covered under any other category of reservation. It targets individuals based on the annual income of the individual or family, which determines whether they fall under the EWS category. It is very statistical in its approach, as a person or their family’s annual income (including revenue from agriculture, business, and other vocations) must be less than 8 lakh rupees in order to qualify for the EWS certificate. There has been criticism against the nature of financial status-based reservations, rooted in the idea that the reservation system is solely intended to improve the social standard of disadvantaged castes and tribes and should have nothing to do with their financial background. Notwithstanding that, the legislation has been approved by the Supreme Court of India. Justice Jitendra Kumar Maheshwari in his judgement upholding the EWS reservation, held that reservation is an instrument of affirmative action that should ensure an ‘all-inclusive march towards [the] goals of [an] egalitarian society’.
A further analysis of the foundation upon which these policies are based reveals why both countries have developed policies of different kinds. While both find their basis in the acknowledgement and addressal of historical wrongs committed against certain groups (except the newly introduced economically weaker section quota), a closer look into the history of both countries provides that there are fundamentally different historical injustices that these measures seek to right. In the United States, it mainly focuses on the historical injustices of racial discrimination, segregation, and slavery against African Americans and other minority groups. The Indian reservation system, on the other hand, aims to address historical ‘caste-based’ discrimination as well as the subjugation of native tribal tribes. The scale of the historical wrongs and the size of the affected populations also vary between the two countries. A far larger proportion of Indian society qualify as historically marginalised based on scheduled castes or belonging to an indigenous tribal community compared to Americans qualifying for affirmative action policies. This necessitated a broader and more extensive reservation system in India.
Impacts
In its short span of life, the American affirmative action policy has shown several positive impacts. It has helped to address historical and systemic inequalities by providing opportunities to underrepresented minority groups, particularly in education. It has promoted diversity and inclusion, enriching educational institutions with a broader range of perspectives and experiences. Additionally, it has also contributed to the empowerment of marginalized communities, fostering a more equitable society. However, due to its comparatively narrower scope, absence of an income-based quota, and short-lived life, it’s often touted that the Indian reservation system continues to attain its objectives in a more efficient way. A study titled ‘Does Affirmative Action Work? Caste, Gender, College Quality, and Academic Success in India,’ conducted by Surendrakumar Bagde (an Indian administrative service officer), Dennis Epple, and Lowell Taylor (two renowned economists), was published in the American Economic Review. It revealed that the reservation system has worked as intended: it improved the attendance of the targeted students (notably at higher-quality institutions); it also addressed the skepticism against the reservation system that it places students in programmes for which they are ill-prepared; the study found no evidence of such adverse impacts. Additionally, with the inclusion of economically weaker sections (EWS), students belonging to the most disadvantaged strata of society have also been helped immensely. An account of an EWS beneficiary student published in Indian Express shows how, for the last 2 years, the EWS quota has helped many in Maharashtra (an Indian state) pursue their dream of medical education. It not only helps students secure a seat in government colleges but also lowers the total fees by up to 50%.
Despite these merits, a drill-down analysis of the Indian reservation system also reveals its share of valid criticisms. For example, the number of reserved seats and the set of qualifying quota groups has expanded with growing pressure to add even more– including for the dominant caste groups. This runs the risk of diluting the reservation system’s value in the first place by supporting those who may not need the advantage. To tackle this issue, the Supreme Court of India in the Indira Sawhney Judgment ruled that reservation can only be allowed to a maximum of 50% of the total seats, but various state governments have made attempts to breach the upper cap of 50% by granting reservation to socially and politically dominant caste groups. A periodic review of the reservation system should be the key focus right now to examine the benefits and gradually aim at reducing the percentage of reservations. One such policy solution could be to exclude the people who have already benefited so that its effect can reach the unsupported population. Justice Pardiwala, a judge at the Supreme Court of India, held in the EWS judgement that ‘the ones who have moved ahead should be removed from backward classes so that those in need can be helped. The ways to determine backward classes need a re-look so that ways are relevant in today’s time’.
Way Forward
A deduction from the above-mentioned impacts of both policies clearly lays out that despite the criticisms, the Indian reservation system and its enforcement by the authorities has helped propel the cause of equality of opportunity in India. The American affirmative action policy, too, continued to showcase its limited yet significant positive effects until being struck down by the SCOTUS in June, 2023.
It is the need of the hour that US lawmakers find a new and alternative way to reintroduce affirmative action in educational institutions and job opportunities. Keeping in mind the historical and cultural differences of India and the US, Washington can take lessons from the Indian reservation system’s positives. The reservation system has been in place for decades and offers valuable insights into the challenges and successes of affirmative action over an extended period. Unlike in India, if the US constitution doesn’t provide for a constitutionally backed affirmative action measure, a statutory policy with strict enforceability should be explored. Its extent should be widened to encompass all historically and currently disadvantaged groups, as it can contribute to a greater social cohesion by addressing inequalities and promoting a sense of fairness in society. Wealth-based reservation quota for the poorest stratum of society should be given a thought, which can level the playing field and ensure that access to education, employment, or other opportunities is not solely determined by one’s wealth or social class. Or at the very least, removing the legacy system whereby admission preference is granted to alumni’s children, which disproportionately assist applicants who come from white and well-off families.
All in all, reflecting on the multitude of directions available to affirmative action, a suitable policy for the cause of equality of opportunity must be set in motion, as diversity and inclusiveness are some of the biggest strengths in the US. President Biden himself has admitted the role of diversity in nation-building on many counts; as he stated, ‘I’ve always believed that one of the greatest strengths of America—and you’re tired of hearing me say it—is our diversity’.
Himanshu Shrivastava is a second year law student at Government Law College, Mumbai. He is keenly interested in constitutional law and legal developments of India and the world.