NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

SUBJECT : AFFIRMATIVE ACTION LAW

PROJECT ON TOPIC

“AFFIRMATIVE ACTION IN INDIA AND THE UNITED STATES: THE

UNTOUCHABLES AND BLACK EXPERIENCE”

Under the guidance of:

Dr. Bir pal Singh

Associate Professor (Law)

Submitted by:

Kapil Karolia

2015BALLB48

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 ACKNOWLEDEGEMENT

I, Harsha, acknowledges the contribution my teacher Dr. Bir Pal singh who gave me the
golden opportunity to do this wonderful project on the topic AFFIRMATIVE ACTION IN
INDIA AND THE UNITED STATES: THE UNTOUCHABLES AND BLACK
EXPERIENCE, which also helped me in doing a lot of research and I came to know so many
new things. I am highly indebted to him for his guidance and constant supervision as well as
for providing me necessary information regarding the project and also for his support in
completing the project.

I would also like to thank the library members of NLIU who have willingly helped me out
with their abilities.

I would like to express gratitude towards my parents for their kind co-operation and
encouragement which helped me in the completion of this project.

Lastly I would like to thank my colleagues in developing the project within the limited time
frame without which I would not have been able to complete my project file.

Thank You

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 TABLE OF CONTENTS
INTRODUCTION..................................................................................................................... 1

SYSTEM OF DISCRIMINATION........................................................................................... 2

SIMILARITY IN CONSTITUTIONAL SAFEGUARDS FOR BLACKS AND

UNTOUCHABLES................................................................................................................... 3

Constitutional Safeguards for the Scheduled Castes..............................................................4

Constitutional Safeguards for Blacks.....................................................................................6

FUTURE INTERACTION BETWEEN THE UNITED STATES AND INDIA......................9

AMERICAN INFLUENCES ON THE DEVELOPMENT OF INDIAN AFFIRMATIVE

ACTION.................................................................................................................................. 13

CONCLUSION........................................................................................................................15

BIBLIOGRAPHY....................................................................................................................15

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 INTRODUCTION
To alleviate discriminatory practices against certain historically oppressed groups, a small
number of countries have adopted affirmative action. In the United States, affirmative action
is defined as a system of preferential treatment for minorities and women which attempts to
compensate them for being denied opportunities of advancement due to past and present
discrimination. Other countries, like India, have adopted affirmative action to deal with the
disadvantaged segments of their populations. While it may surprise some scholars that
countries other than the United States employ affirmative action, India utilized such
preferential treatment well before the United States. The United States developed affirmative
action to fight discrimination against minority groups and women, while India created
affirmative action to remedy its history of discrimination against groups, such as the
"untouchables," who occupy the lowest rung in the Hindu caste system. Various names have
been attributed to Indian affirmative action. For the purposes of this note, the term
"compensatory discrimination," as used by such legal scholars as Parmanand Singh and Marc
Galanter, will refer to India's affirmative action programs.

The comparison between the United States and Indian affirmative action systems becomes
even more interesting upon observing that blacks in the United States and untouchables in
India share similar histories of discrimination. It is especially noteworthy that each country
has influenced the development of the other's affirmative action programs. Given that the
United States and India are so geographically distant from each other and share minimal
cultural interaction, finding any similarities between the two countries seems reason enough
for investigation.

Special emphasis will be given to U.S. and Indian affirmative action programs as they relate
to black and untouchable experiences. In examining black and untouchable experiences, the
discussion will attempt to reveal the similarities between the affirmative action programs in
the United States and India, the influences one has had on the other, and the potential for
future interaction. The primary focus will be on Indian influences and perceptions regarding

the American affirmative action system and civil rights history.1

1 https://mckinneylaw.iu.edu/iiclr/pdf/vol3p101.pdf (last accessed on 13th March 2019)

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 SYSTEM OF DISCRIMINATION
The Hindu caste system is based on a social hierarchy which assigns untouchables to the
lowest class. Traditionally, the caste system was divided into the following four classes, or
Varnas, in order of rank: The Brahmins, or the priests and scholars; the Kshatriyas, or the
kings and warriors; the Vaishyas, or the merchants and the business class; and the Shudras
(who are today referred to as the "untouchables"), or the serfs and laborers. Within each class
exist subgroups called "jatis," for which the correct English translation is "castes.''
Traditionally, the untouchable castes had been restricted to employment in menial labor and
other occupations that were considered inferior by the higher caste members.

The Hindu caste system is a hierarchy of endogamous and permanent groups regulated by
complex social codes and sanctions, and various behavior patterns, such as diet, dress,
custom and occupation. Traditionally, untouchables lived under a strict system of segregation
that was rigidly enforced. The penalties for breaking the rules of segregation were severe.
Today, the caste system is not as rigidly adhered to since the Indian government has created a
number of legal provisions giving untouchables greater rights. Article 17 of the Indian
Constitution, adopted in 1949, two years after gaining independence from Great Britain,

officially abolished the concept of untouchability.2

Other Articles also gave untouchables various rights, and additional provisions which granted
untouchables greater rights were soon added. Despite the Indian government's efforts to
improve the status of untouchables, the social stigma of untouchability remains.

The United States has a comparable history of discrimination in its treatment of blacks.
Slavery, like untouchability in India, was deeply rooted in American history.

Discrimination against blacks in the form of Black Codes and Jim Crow laws existed in the
post-Civil War era and these methods of discrimination continued well into the middle of the
twentieth century. Black Codes prevented blacks from entering into occupations other than
menial labor. Under Jim Crow laws, blacks lived in segregated neighborhoods and were
denied or restricted in access to public facilities, such as schools, churches, restaurants, and
transportation. Like slavery, the Jim Crow system was supported by the assumption of innate
white supremacy over blacks.The precedent for judicial support of Jim Crow laws was
established in Plessy v. Ferguson3, in which the United States Supreme Court held that there
2http://siteresources.worldbank.org/INTWDR2006/Resources/477383-
1118673432908/Affirmative_Action_in_India_and_the_United_States.pdf (last accessed on 13th March 2019)
3 163 U.S. 537 (1896)

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was neither a Thirteenth nor Fourteenth Amendment violation in maintaining separate
facilities for blacks and whites.The Court observed that although blacks and whites were
relegated to separate facilities, the races were nevertheless equal. The Court considered
segregated facilities equal despite over- whelming evidence of the inferior conditions of
black facilities. In reality, blacks lacked access to many of the same public facilities as did
the untouchables. The Jim Crow laws, in effect, discriminated against blacks in the same way
that the caste system discriminated against the untouchables. Untouchables and blacks,
despite differing cultural experiences, suffered from similar forms of suppression. Both
groups bore a "badge of servitude.

SIMILARITY IN CONSTITUTIONAL SAFEGUARDS FOR BLACKS AND

UNTOUCHABLES
India's constitution, enacted in 1947, created a number of safeguards for the untouchables,
who are referred to under the constitutional nomenclature as the “Scheduled Castes”. The
framers of the Indian Constitution sought methods that would alleviate the oppressed status
of untouchables. The consensus was that without a system of compensatory discrimination or
affirmative action, untouchables would be unable to successfully compete with the rest of

society.4

The Indian Constitution, unlike the U.S. Constitution, expressly provides for affirmative
action, or “compensatory discrimination”. No controversy, therefore, exists over the
constitutional validity of affirmative action in India. The Indian Constitution also expressly
allows "reservations" or quotas. In the United States, in contrast, the Fourteenth Amendment
has been interpreted to permit affirmative action. Furthermore, the constitutional validity of
quotas in the United States remains unclear. When discussing affirmative action in both
countries, it is important to note that such programs include other groups besides blacks and
untouchables. Just as affirmative action programs in the United States encompass minorities,
such as Hispanics and Native Americans, the Indian Constitution also includes other groups,
such as the "Scheduled Tribes" (ST) and "Other Backward Classes" (OBC). The Scheduled
Castes (SC), Scheduled Tribes, and Other Backward Classes are collectively referred to as
the "backward classes" under the Indian Constitution.

4 International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212 Vol 2 Issue 1
<http://ijlljs.in/wp-content/uploads/2015/01/AFFIRMATIVE-ACTIONS-IN-INDIA-AND-US.pdf (last
accessed on 13th March 2019)>

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 A. Constitutional Safeguards for the Scheduled Castes
The safeguards contained in the Fundamental Rights section of the Indian Constitution
closely resemble affirmative action programs in the United States.

Article 14 of the Indian Constitution establishes the general right of equality:

The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.

The Article 14 concept of equality espouses the principle that similarly situated persons will
be treated alike. The law, therefore, need not apply identically to each and every person
Durga Das Basu, a renowned Indian constitutional law scholar, sums up the concept of
equality as follows:

The principle of equality does not mean that every law must have universal application for all
persons who are not by nature, attainment or circumstances in the same position, as the

varying needs of different classes of persons often require separate treatment.5

Some degree of inequality exists in any classification. The state, however, may only create
‘reasonable classification[s].” In Akhil Bharatiya Soshit Karmachari Sangh v. Union of
India6," for example, the Indian Supreme Court held that a reservation (quota) for the
Scheduled Castes and Tribes which was not substantially above fifty percent was a
reasonable classification. The Court stated, however, that arbitrary and unreasonable
classifications were unconstitutional.

Article 14's interpretation of "equality" provides the theoretical basis for giving preferential
treatment to the Scheduled Castes under the "reasonable classification" standard. 47
Moreover, the Indian Constitution leaves little room to challenge the legitimacy of
preferential treatment as specific articles give the state the power to implement affirmative
action programs. Article 16(4) states:

Nothing in this article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens which, in the opinion of

the State, is not adequately represented in the services under the State.7

5https://www.researchgate.net/publication/289476273_Affirmative_action_in_the_United_States_and_India_A_
comparative_perspective (last accessed on 13th March 2019)
6 A.I.R 1981 S.C. 298.
7 Indian Constitution Article 16(4)

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Article 16(4), in addition to allowing the creation of quotas, gives the state the right to
establish preferences for the promotion of untouchables in government employment. The
landmark decision in State of Kerala v. N.M. Thomas 8 established the government's right to
create such special preferences for the Scheduled Castes and Scheduled Tribes in government
employment. Quotas, however, must be within reasonable limits not only under the
reasonable classification standard of Article 14, but also under Article 335, which states:

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, in the
making of appointments to services and posts in connection with the affairs of the Union or

of a State.9

Article 335, while recognizing the claims of the untouchables, places limitations on the extent
to which the state can reserve places for the Scheduled Castes. Consequently, a balance must
be struck between the number of places reserved for the Scheduled Castes in government
employment and the number of those positions which are to be secured by competition or
merit selection.

In India, quotas in educational and other state-run institutions were also a matter of
controversy until the passage of Article 15(4). The creation of Article 15(4) was prompted by
the decision in State of Madras v. Champakam Dorairajan 10. In Dorairajan, the Court held
that reservations in educational institutions were in violation of Article 29(2) which
prohibited educational institutions from denying admission to applicants based on religion,
race, caste, or language. The Court maintained that special quotas on the basis of caste were
violative of the prohibition against caste discrimination. Shortly thereafter, Article 15(4) was
passed which effectively overruled Dorairajan.

While Articles 15(4) and 16(4) allow the state to make special provisions for untouchables,
such allowances must also be viewed in the context of Articles 15(1) and 16(1). Article 15(1)
provides that "the State shall not discriminate against any citizen on grounds only of religion,
race caste, sex, place of birth or any of them." Article 16(1) which, like Article 16(4),
specifically applies to government employment provides that "there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to any office
under the State."
8 A.I.R. 1976 S.C. 490.
9 Indian Constitution article 335
10 A.I.R. 1951 S.C. 226.

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The Fundamental Rights of the Indian Constitution are presently interpreted in a way that
promote substantive equality. This, however, does not imply that the state has unbridled
power to make classifications in favor of untouchables. The state may only create reasonable
classifications which do not, as stated in Article 335, interfere with “the maintenance of
efficiency of administration”. Therefore, merit must also be taken into consideration and
some balance must be reached between the reservations made for special groups and
positions secured through strictly competitive means. 11 It is important to realize that
substantive equality is not promoted due to a staunch egalitarian philosophy, but as a result of
both great injustices that groups like the untouchables have suffered and political
considerations. It may be more appropriate to say in regard to the Indian Constitution that
substantive equality operates within the general framework of formal equality. In Galanter's
words, "The compensatory principle of substantive equality is added to the constitutional
scheme of formal equality, but it does not displace it." The Indian constitutional analysis thus
finds a place for what are often considered two contradictory notions of equality.

The major challenge facing the Indian constitution is whether its protections for the
untouchables will be able to withstand the social upheaval over affirmative action. So far, the
Indian constitution and the judiciary have remained a source of stability in an otherwise

chaotic social and political environment.12

B. Constitutional Safeguards for Blacks

In the United States Constitution, the Fourteenth Amendment was created with the intention
of securing and upholding rights that had been given to the newly freed black slaves. The
Equal Protection Clause of the Fourteenth Amendment prevented the states from
discriminating against blacks. The states, however, were not necessarily obliged to better the
status of the newly freed slaves. Unlike the Indian Constitution, the U.S. Constitution does
not expressly legitimize affirmative action or "benign preferences." The constitutional
validity of affirmative action relies upon an implied justification for such benign
classifications under the Equal Protection Clause.

The landmark decision of Brown v. Board of Education of Topeka 13 was a precursor for the
development of affirmative action programs in the United States. In Brown, which overruled

11 Id 2
12 http://theconversation.com/racial-and-caste-oppression-have-many-similarities-37710 (last accessed on 13th
March 2019)
13 347 U.S. 483 (1954).

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Plessy, the Court held that separate but equal was inherently unequal. The Brown ruling
paved the way for other Supreme Court rulings which declared segregation violative of the
Fourteenth Amendment. Once racial barriers such as segregation were legally removed, legal
scholars questioned whether benign preferences for minorities such as blacks were
constitutionally permissible. As Justice Matthew of the Indian Supreme Court states in his
analysis of Brown:

Beginning most notably with the [United States] Supreme Court's condemnation of school
segregation in 1954, the United States has finally begun to correct the discrepancy between
its ideals and its treatment of the blackman.... 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 real equality.14

One positive use of governmental power to create greater equality occurred with the passage
of the Civil Rights Act of 1964. A key provision of this Act was Title VII (42 U.S.C. S 2000e
et seq.) which was enacted to combat race and other forms of discrimination in a number of
employment settings, including private employment. The application of Title VII has
generated heated debate. Opponents of affirmative action claim that Title VII has been
interpreted to unjustly allow benign preferences for minorities which has resulted in "reverse
discrimination" against the white majority.

The prohibitions against discrimination stated in the Civil Rights Acts of 1964, its progeny,
and various court decisions led to the establishment of affirmative action. Affirmative action
faced its first serious challenge in Regents of the University of California v. Bakke 15. Bakke,
the plaintiff, alleged that the quota employed by the medical college at the University of
California at Davis was in violation of the Equal Protection, Clause of the Fourteenth
Amendment, the California Constitution, and Title VI of the Civil Rights Act of 1964. The
Court, in a 5-4 plurality opinion, ruled that racial quotas were illegal under Title VI. At the
same time, the Court also held by a 5-4 vote that race could be used as a factor in an
admissions program for the purpose of establishing a diverse student body.

In effect, Bakke left the door open for benign preferences to continue. The decision, however,
failed to settle the constitutional controversy over affirmative action. Was affirmative action
permissible under the Equal Protection Clause of the Fourteenth Amendment? Although the

14 PARMANAND SINGH, EQUALITY, RESERVATION AND DISCRIMINATION IN INDIA 52 (1982).

15 438 U.S. 265 (1978)

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Court ruled that quotas were illegal, post-Bakke decisions cast some doubt on this position.
Such devices as "temporary quotas" which are intended to achieve a certain percentage of
minorities in the work force are, in essence, quotas. Under Title VII, mathematical ratios and

"membership goals" have also been upheld.16

The previous discussion of Bakke and other developments regarding quotas and benign
preferences are especially relevant to legal scholars who desire to compare the U.S. and
Indian affirmative action systems. Indian legal scholars often compare Bakke to Thomas.
Both decisions dealt with "reverse discrimination" and took place at approximately the same
time. While Bakke invalidated the use of quotas, Thomas clearly upheld them. Still, Bakke
did not invalidate the use of benign preferences since it allowed race to be considered a factor
in the admissions process. The Indian legal scholar, Parmanand Singh, observed that "Bakke
is indeed a real victory for the civil rights proponents who were afraid that if the Court had
ruled that use of race in any form and in any circumstances is impermissible then the whole
'affirmative action' policy would have collapsed." Whether Bakke and subsequent decisions
favouring minorities will remain valid precedent under the Rehnquist Court is still uncertain.

In the area of employment law, the Civil Rights Act of 1991 has overturned a number of
recent Supreme Court decisions that greatly curtailed the effectiveness of proving racial and
sexual discrimination. The U.S. Supreme Court's latest decisions made it more difficult to
prove racial discrimination under Title VII. In Wards Cove Packing Company v. Antonio 17,
for example, the Court held that statistics of disparate impact on minorities were not
sufficient to form a prima facie case of discrimination. The Court stated that to prove racial
discrimination, the plaintiff must be able to identify the alleged discriminatory practice and
prove that non discriminatory reasons given by the defendant are only pretexts for
discrimination. The passage of the Civil Rights Act of 1991 has effectively overturned Wards
Cove.

Both Indian and American law has tried to incorporate substantive equality into a framework
of formal equality.

16Race,Class, Caste…. Rethinking Action https://www.jstor.org/stable/1290285?

seq=1#metadata_info_tab_contents (last accessed on 13th March 2019)>
17 490 U.S. 642 (1989).

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 FUTURE INTERACTION BETWEEN THE UNITED STATES AND INDIA
Both the U.S. and Indian affirmative action systems function in similar political environments.
Both countries are ethnically and culturally pluralistic societies which have a democratic form of
government and similar judicial systems. There is also a great deal of controversy over the
fairness of affirmative action in both societies. For example, certain Indian states have
experienced riots and other forms of violent protest over affirmative action. Despite the Indian
government's support for affirmative action, social support has been much more divided. The idea
of reverse discrimination generates controversy among Indians and Americans alike. Due to the
political and social similarities that exist in both countries in regard to affirmative action, the
potential for continued future interaction is significant.

Whether future interaction between the United States and India will be bilateral or unilateral
is an important question. The Indian legal community, if not directly influenced by the U.S.
Supreme Court decisions and legislative schemes, will most likely continue to be aware of
and influenced by legal events that affect affirmative action in the United States. On the other
hand, whether the United States can learn anything from India's lengthy experience with
affirmative action remains an open question. India's repertoire of experience with affirmative
action should serve as a good reference for the United States in accessing its own affirmative
action programs.

India could particularly benefit from researching the American judicial encounter with the
implementation of affirmative action laws and programs. 174 The American judiciary has
played a significant role in shaping the development of affirmative action and civil rights.
U.S. courts have demonstrated a willingness to exercise judicial review and judicial activism
in implementing the laws as they have perceived them. If India is to remedy the continuing
discrimination against untouchables and the politics involved in selecting the beneficiaries
under the OBC, then the Indian Supreme Court as well as the High Courts must exercise
greater discretion over the implementation of affirmative action policies. The Indian Supreme
Court is capable of exercising greater judicial review of affirmative action programs. The
Indian Supreme Court possesses judicial review over a broad jurisdiction including the
enforcement of the constitutionally mandated affirmative action provisions.

One area where greater judicial review would greatly benefit the politically plagued
affirmative action system is in the selection of the OBC. The selection process by which
groups are categorized under the OBC is highly politicized. Abuses in the selection process

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result in resources being diverted from the truly needy members of the OBC and the
untouchables. The states' discretion in determining beneficiaries under the OBC must be
placed under greater judicial scrutiny. The Supreme Court, which possesses the power to
establish jurisdiction over the states' discretion in the selection of the OBC, needs to provide
clearer guidelines as the selection criteria for the OBC. The problem of the Court's
overloaded docket could be solved by creating judicial agencies under the Court's authority
which would monitor the states' selection procedures. Greater judicial enforcement in the
selection of the OBC would create increased efficiency in allocating resources to deserving

beneficiaries.18

Judicial activism is not a panacea for the great abuses that untouchables continue to suffer in
India. However, the judiciary will provide greater checks for possible abuses. While the other
branches of government must concern themselves with the political repercussions of their
actions, the judiciary is the one branch of government which can act without taking political
whims into consideration.

Implementation of anti-discrimination laws is another area in which India needs great

improvement. Major questions exist as to how effective anti-discrimination laws are in
protecting untouchables. While the judicial system is easily accessible to untouchable
litigants, some of the greatest injustices are never brought to its attention due to the ignorance
among victims regarding legal options.19 The scope of judicial involvement and enforcement
of anti-discrimination laws could be increased through the implementation of agencies such
as the Civil Rights Division of the Justice Department and the Equal Employment
Opportunity Commission, which are found within the U.S. government. Although these
agencies have not always been effective in addressing the problems of discrimination in the
United States, they would at least help to identify some of the more serious problems of
discrimination which could, in a country like India, go unnoticed. Such enforcement agencies
may also give incentives to apathetic administrators to actually abide by the existing laws.
Without such agencies, the means by which anti-discrimination laws are enforced become
much weaker.

Awareness of the successes and failures of India's affirmative action programs may provide
the United States with an idea as to what policies may be desirable or undesirable in relation
to the existing political and social environment. India's experience with affirmative action
18 Id 4
19 Id 1

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may serve as a simulation study for the United States. The United States will increasingly
become a more culturally diverse society as the minority population continues to grow at a
much faster rate than the Anglo population”. If the economy continues to decline,
competition for entry into positions in employment and education will most likely become
keener. Under such conditions, the controversy over affirmative action is likely to intensify.
A recent study conducted by the National Research Council of the National Academy of
Sciences predicts that a worsening economy could result in greater racial tensions, which
could lead to race riots and other forms of violent behaviour reminiscent of the 1960's. he
conditions just described are reflective of India today where, compared to the United States,
there is far more cultural diversity and the competition for positions in employment and
education is far more intense. In India, the controversy over affirmative action has been at the
root of heightening controversy and social tension and has resulted in caste riots and other
forms of violent protest. India's experience with affirmative action can serve as a guide to the
United States in shaping its affirmative action policies in order to better prepare for the
future.20

One example of where the United States might benefit from studying Indian approaches to
civil rights is in the area of language-related discrimination. Newly emerging areas in
American constitutional law present problems involving English-only laws, treatment of
bilingual skills in the workplace, and various other forms of linguistic based discrimination.
Professor Tribe predicts that multilingual ability in the employment setting “is going to be the

new frontier of equal protection and anti-discrimination legislation and litigation”.21

The framers of the Indian Constitution took into consideration the problem of linguistic
discrimination. India's ability to accommodate linguistic diversity, regardless of whether the
language involved is indigenous or foreign, may hold solutions to the growing linguistic
diversity in the United States.

The myriad of languages and dialects provide India with the reputation of being the most
linguistically diverse and complex nation on earth. Accommodating linguistic diversity is
vital for maintaining a unified India. Interestingly, beneficiaries of preferential treatment in
Indian states have included members of various linguistic communities. Individual Indian

20 Id 1
21https://www.researchgate.net/publication/289476273_Affirmative_action_in_the_United_States_and_India_A
_comparative_perspective (last accessed on 13th March 2019)

14 | P a g e
states, with varying magnitudes of language related tensions, have adopted separate
approaches to their linguistic problems.

India provides a plethora of examples of successful and unsuccessful approaches in dealing

with linguistic problems in employment, education, and life in general. While the
controversies over multilingualism in the United States are relatively minor, they are bound
to grow. The advent of English-only laws, for example, in a number of American states have

already created resentment among Hispanics and other ethnic groups.22

India's approach to solving its linguistic crisis is only one example of where the United States
may discover plausible approaches to its own newly emerging language related problems.
The social reaction over affirmative action in India should be of particular interest to the
United States. Has preferential treatment led to the perpetuation of caste and race? Critics in
both countries claim that it has.23 Should the United States adopt an OBC-like category which
would be intended to benefit other minorities who have also been the victims of
discrimination, such as Jews and poor whites? Or would expanding preferential treatment
lead to a deterioration in competitive values and individual merit which are so highly prized
in American society? These are some of the general areas in which the United States and
India could share their experiences.

The controversy over the fairness of preferential policies is a hot issue in both India and the
United States. Some suggest that alternative policies in place of preferential treatment may be
more suitable. For example, a direct approach would entail spending more funds on
increasing educational opportunities and services for untouchables in India or blacks in the
United States. While in theory this suggestion sounds attractive, the solution fails to take into
consideration that sufficient funding may not be available for providing untouchables or
blacks with better opportunities. Whatever alternatives may be presented for helping
untouchables and blacks, there must always be a diversion of resources for the benefit of less
privileged groups. Which segment of society will pay the costs of social welfare for the less
privileged? The social perception over greater spending for untouchables may, in reality, be
no different than the negative reaction that affirmative action has received in the United
States. The solution to providing opportunities to such traditionally oppressed groups as
blacks and untouchables may lie in whether society is willing and capable of spending
resources to help alleviate a deeply rooted cultural ill. The answer to this question will have
22 Id 7
23 Id 1

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great implications for social stability in both India and the United States. In the meantime, the
forces for social instability are increasing in both India and the United States.

In India, the downfall of V.P. Singh's government in 1990 which was due in part to the anger
among higher caste voters over his strong support for the Scheduled Caste and other Indian
minorities, and the corresponding rise of the BJP, the Hindu fundamentalist party, does not
bode well for solving India's communal crisis. The religious campaigns launched by the BJP
pose a threat to the fragile nature of India's secularism. The recent massacres of untouchables
in Northern India over disputes concerning agrarian reform also highlight the continued
oppression of untouchables by higher caste communities.

In the United States, the rise of white supremacist groups, such as the skinheads and the Ku
Klux Klan, presents a direct threat to all minorities in the United States, such as blacks and
Jews. The incidence of racial violence and hate crimes is on the rise. The increasing
popularity of far right candidates, such as David Duke and his milder version, Pat Buchanan,
also demonstrates the growing frustration the "majority" is feeling with the perceived
advantages that minorities are reaping. In reality, blacks and Hispanics in the United States
continue to occupy the bottom of the socio-economic ladder and many live in conditions
resembling the third world.

Future interaction between India and the United States concerning affirmative action and the
general problems concerning communal relations may never take place. This, however, will
not prevent scholars from observing the similarities in cultural and legal trends between the
two countries. In both India and the United States, laws protecting blacks and untouchables
which are rooted within the constitution are being challenged by recent economic and cultural
trends. The methods by which these law are strengthened, maintained, or weakened will

reveal important information about the democratic systems in both countries.24

AMERICAN INFLUENCES ON THE DEVELOPMENT OF INDIAN AFFIRMATIVE

ACTION
The most significant American influence on Indian affirmative action is the incorporation of
the language of the Equal Protection Clause of the Fourteenth Amendment into Article 14.
Article 14 states that "The State shall not deny to any person . . . the equal protection of the
laws.'' Unlike the Fourteenth Amendment which lends questionable support to affirmative

24 https://mckinneylaw.iu.edu/iiclr/pdf/vol3p101.pdf (last accessed on 13th March 2019)

16 | P a g e
action, Article 14 has been read to actually endorse affirmative action. The Indian Equal
Protection Clause, similar to its American counterpart, applies only to state action. 25 Article
14 analysis has employed the "rational basis test," as used in equal protection analysis under
the Fourteenth Amendment. In both countries, the rational basis test provides a method of
evaluating the constitutional validity of legislation. his standard of review automatically gives
great deference to the legislature. In Indian constitutional law, the rational basis test would,
for example, be used in determining whether quotas created for untouchables satisfied the
equal protection guarantee of Article 14.

Indian equal protection analysis, however, has not adopted any ''strict scrutiny" standards,
such as the "compelling state interest" test or “intermediate scrutiny”. The Indian legislature
considered the rational basis test sufficient because, unlike in the United States, legislation
has seldom been used as a means of discrimination against untouchables. 26 The purpose of
strict scrutiny was to subject legislation that discriminated on the basis of race or other
"suspect classifications" to a higher judicial standard of constitutional review. According to
one scholar, in India, the fear is not so much from state-sponsored discrimination as it is from
social discrimination. India's omission of "strict scrutiny" also avoids the problem of
determining which standard of review to apply to "benign classifications" or legislation
favourable to minorities; since affirmative action is rooted in the Indian Constitution, benign
preferences are more likely to satisfy the rational basis test.

Although Indian judges have cited U.S. affirmative action decisions and law review articles
in their opinions, U.S. case law has not been cited as legal precedent. It has, nevertheless,
been used to support the view that affirmative action can exist alongside a constitutional
system which stresses equality. American influence on Indian legal scholars began as India
was in the process of creating a constitution. For example, Mr. B.N. Rao, the Indian
constitutional advisor, visited the United States and solicited the views of many influential
American judges and scholars. "' Arguably, the most prominent Indian to be influenced by
the United States was Dr. B.R. Ambedkar, the great untouchable scholar and Chairman of the
Constitutional Committee. Ambedkar, while at Columbia, was inspired by such legal
constructs as the Fourteenth Amendment which had guaranteed blacks greater freedoms. One
of Ambedkar's American heroes was Booker T.

25 Id. 9
26 Id. 1

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Washington, the black reformer and educator. Ambedkar's revolution for the emancipation of
untouchables was significantly influenced by American ideals of equality.

CONCLUSION
The United States and India are two countries which have implemented affirmative action
programs. The controversy over the justifications and success of affirmative action will
continue well into the future. While some will argue that affirmative action in United States
and India has led to worse race or caste relations, the implementation of such preferential
programs indicate a willingness on the part of both countries to address the problem of
discrimination. Those governments which have been slow to confront problems of
discrimination within their own countries are now suffering the consequences of such
neglect. The former Soviet Union is a prime example of where suppressed and ignored
minorities did not waste time in establishing their separate homelands when they got the
opportunity to express their free will. In discussing the experiences of Indian untouchables
and American blacks with affirmative action, there are many areas of comparison which
warrant greater study and analysis. This analysis has been general and should be viewed as
heuristic rather than one which provides specific remedies to complex problems. Also,
scholars engaged in comparative and international studies on the legal aspects of
discrimination may find some useful ideas from this discussion. If a legal issue such as
affirmative action can be compared between two such diverse cultures as the United States
and India, then the scope for comparison between other countries should also increase. Many
scholars have been reluctant to make comparisons between the United States and India due to
perceived cultural irreconcilability. This perception may not only discourage scholars from
making legitimate comparisons, but may also inhibit the motivation for borrowing innovative
and effective ideas from other cultures due to their foreignness.
BIBLIOGRAPHY
 https://mckinneylaw.iu.edu/iiclr/pdf/vol3p101.pdf
 http://siteresources.worldbank.org/INTWDR2006/Resources/477383-
1118673432908/Affirmative_Action_in_India_and_the_United States.pdf
 http://ijlljs.in/wp-content/uploads/2015/01/AFFIRMATIVE ACTIONS IN INDIA
AND US.pdf
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  https://www.researchgate.net/publication/289476273 Affirmative action in the Uni ted
States and India A comparative perspective
 http://theconversation.com/racial and caste oppression have man similarities 37710
 https://www.jstor.org/stable/1290285? seq=1#metadatainfotab
 https://www.researchgate.net/publication/289476273 Affirmative action in the United

States and India A comparative perspective

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