Affirmative Action and Social Discrimination: A Functional Comparative Study of India, USA and South Africa

Levade [1].

Faundez [2].

See Berg [3].

Tushnet [4], Michaels [5].

Wolpert [6].

Boparai [7].

Fremon [8].

Anderson [9].

See Stone et al. [10].

Chandola [11]. Also see, Deshpande [12].

Sunstein [13].

Racism and Apartheid in Southern Africa: South Africa and Namibia (The UNESCO Press, Paris, 1974), (last May 7, 2021, http://​unesdoc.​unesco.​org/​images/​0001/​000122/​012289eo.​pdf.

Some even consider constraints on the domestic labour market and international financial boycotts as a major factor in the collapse of apartheid. See Schwartzman and Taylor [14].

Agrawala [15].

Prasad [16].

Art. 14 of the Constitution provides the formal principle of ‘equality before the law and equal protection of the laws’ and Art. 15 and 16 are specific implementation of the principle of equality. Art. 17 and 18 abolish untouchability and titles, respectively.

Constitution of India, Art. 46 reads as: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, or the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”.

Constitution of India, Art. 330 and 332.

Constitution of India, Art. 16(1) and (2) read as: “(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 grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”.

Jain [17].

Other Constitutional provisions were subsequently added through numerous constitutional amendments, namely Arts. 15(4), 15(5), 15(6) and 16(4-A), (4-B).

Please note that when Article 15 (Article 9 during the Constituent Assembly Debates) was taken up for discussion before the Constituent Assembly, Prof K. T. Shah, proposed an amendment extending advantages and safeguard to SCs and STs, however the same was rejected by Ambedkar by stating that such an amendment could lead to their separation from the general public. See, Constituent Assembly Debates, November 29, 1948, available at: http://​164.​100.​47.​194/​loksabha/​writereaddata/​cadebatefiles/​C29111948.​html (last visited on Jan 29, 2018).

State of Madras v. Srimathi Champakam Dorairajan AIR 1951 SC 226, B. Venkataramana v. State of Madras, AIR 1951 SC 229.

Initially the Supreme Court in General Manager, S. Rly. v. Rangachari, AIR 1962 SC 36 was of the view that the power vested in the state under Art. 16(4) to reserve seats could be exercised not only in the initial appointment but also in promotions as well. However, this position was changed by Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, where the Court held that reservation will be applicable only for initial appointment and not for promotions.

77th Constitutional Amendment Act, 1995, Article 16(4A) reads as: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”.

M. Nagraj v. Union of India, (2006) 8 SCC 212.

The pre-requisite conditions laid down by the Court for providing reservation in promotion were, assessing the inadequacy in the quantum of representation, their backwardness and its impact on the efficiency. Unless the State undertakes this scrutiny, reservation in promotion for members of SC/ST will not be acceptable. Recently, some aspects of Nagraj judgment were called for scrutiny before a five-Judge Bench of the Supreme Court, however the Court refused to review the judgment barring some deviations Jarnail Singh v. Lacchmi Narain Gupta, (2018) 10 SCC 396.

Constitution of India, Article 16(4A) reads as: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion [with consequential seniority] to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (emphasis added)”.

Union of India v. Virpal Singh, AIR 1996 SC 448., Jagdish Lal v. State of Haryana AIR 1997 SC 2366, Ajit Singh II v. Union of India AIR 1999 SC 3471.

Constitution of India, Article 16(4B) reads as follows: “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year”.

The Constitution does not provide any minimum or maximum percentage of reservation for different beneficiaries and hence the maximum limit was carefully set as 50% by the Supreme Court in M. R. Balaji v. State of Mysore, (1963) Supp 1 SCR 439 and was consequently reiterated in T. Devadasan v. Union of India, (1964) 4 SCR 680, wherein Court struck down carry forward rule which provided for carrying forward of unfilled quota to the subsequent two years, in case suitable candidates were not, which eventually increased the quantum of reservation more than 50%. Consequently, Indra Sawhney, supra note 26 affirmed that 50% ceiling should be applied each year for initial appointments. Finally, R. K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 (issue was with respect to promotions) clarified that entire cadre strength should be taken into consideration to assess whether reservation is within the permissible limit.

Constitution of India, Article 15(5) reads as: “(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30”.

Weisskopf [18].

Lillibridge [19].

163 U.S. 537 (1896).

347 U.S. 483 (1954).

Executive Order 10,925 provides that “it is obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, colour, or national origin, employed or seeking employment with the Federal Government and on government contracts”. Further, Title VII of the Civil Rights Act of 1964 also established a Commission on Equal Employment Opportunity, however there is no such Commission in India as of yet.

The titles ban discrimination (whether negative or positive), on grounds of race, color, religion, sex, or national origin, in federally assisted activities and in employment, respectively.

Executive Order No. 11246 issued by President Johnson.

Supra note 36 at 17.

Jenkins [20].

The Constitution of the Republic of South Africa, 1996, sec. 9 reads as: “Equality: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair”.

Wang [21].

NkonzoLanga [22].

Employment Equity Act, 1998, Preamble.

Jagwanth [2].

Attf der Heyde v. University of Cape Town, (2000) 8 BLLR 877 (LC).

HarmseV. City of Cape Town, 2003 (24) L.LJ. at 1133–34. In Stoman v. Minister of Safety and Security 2002 (3) SA 468. The Constitutional Court upheld the order of the South African Police Service not to promote a white male. The Court observed that the main intention of the Legislature is not to compensate individuals belonging to a disadvantaged group, but to advance the group to whom an individual belongs and to bring about substantive equality. Similarly, the idea is not to violate the right of an individual of a previously advantaged applicant, but to weaken the over-representation which the entire group has been enjoying.

Oppenheimer [23].

Nagel [4].

Galanter [5].

Sowell [6].

438 U.S. 265 (1978). The challenge was against the affirmative action plan of the University, which provided a quota and reserved 16 out of 100 seats for the members of the minority group. The Supreme Court of California ruled against the affirmative action policy. The matter went to United States Supreme Court, wherein the Court ruled in favour of race-conscious affirmative action, however, rejected the use of strict quotas.

Grutter v. Bollinger 539 U.S. 306 (2003), Gratz v. Bollinger 539 U.S. 244 (2003).

Cohen and Sterba [7].

Kellough [8].

136 S. Ct. 2198 (2016).

Eight States in the USA have prohibited race based affirmative action programmes namely, California, Texas, Florida, Michigan, Washington, Nebraska, Arizona, and Oklahoma.

Employment Equity Act, 1998, s. 15(3).

Deane [9].

Louw [10].

Guest [11]. Also see, Sachs [12].

Jaswal [13].

Different Committees and Commissions adopted the criteria of untouchability to define depressed classes. The Southborough Franchise Committee in 1919, The Statutory Commission, 1930 and The Indian Central Committee all defined depressed classes as untouchables. See, Government of India, I “Report of the Indian Franchise Committee” 109 (1932).

Government of India [14].

National Commission for Scheduled Tribes, First Report (2004–2005 and 2005–2006), (Feb 26, 2022), https://​www.​ncst.​nic.​in/​sites/​default/​files/​documents/​ncst_​reports/​first_​annual_​report_​of_​ncst/​PART%20​I%20​-%20​Ist%20​Report%20​NCST%20​2004-20059484175791.​pdf.

The Second Backward Classes Commission in its report computed the percentage population of OBCs (including both Hindu and non-Hindu) to be around 52% of the entire population.

Béteille [15].

McGregor [16].

Wang [17].

Mehta [18].

Béteille [19].

See generally MILTON FRIEDMAN AND ROSE FRIEDMAN, FREE TO CHOOSE: A PERSONAL STATEMENT 132 (Harcourt, 1990), Cohen [20].

Benatar [21].

Naidoo and Kongolo [22].

Weisskopf [24].

This idea has been discussed frequently in the political paradigm. See G Thimmaiah, Implications of Reservations in Private Sector, 40(8) ECONOMIC and POLITICAL WEEKLY 745–750, Prakash Louis’, Affirmative Action in Private Sector, 39(33) ECONOMIC AND POLITICAL WEEKLY 3691–3692., Hiroshi Sato, Social Dimension of Employment Policy in India: Indian Debate on Employment Reservation in the Private Sector, Globalization, Employment and Mobility 2008, (Springer), Sukhadeo Thorat et al. (eds) Reservation and Private Sector: Quest for Equal Opportunity and Growth, 89–100 Institute of Dalit Studies and Rawat Publications, New Delhi.