A recent decision by the U.S. Supreme Court to halt affirmative action or positive discrimination in college admissions has ignited substantial global debate and discourse. In the case of Students for Fair Admissions v. Harvard1, the United States Supreme Court (SCOTUS) ruled that the race-based admission policies of Harvard and the University of North Carolina (UNC) were unconstitutional and violated the Equal Protection Clause of the Fourteenth Amendment. Considering that Indian courts frequently reference rulings from the United States and given the shared histories of discrimination based on caste and race in both India and the U.S., it is important to analyze the potential consequences of this decision for India.

Purpose of Affirmative Action in US Educational Institution
In the realm of higher education, affirmative action generally pertains to admission policies designed to boost the representation of Black, Hispanic, and other minority students within the campus community. Colleges and universities include race as one element in a comprehensive evaluation process that assesses all facets of an application, such as academic performance, standardized test scores, and extracurricular involvement. The goal of race-conscious admissions policies is to increase student diversity in order to enhance the educational experience for all students. Schools also employ recruitment programs and scholarship opportunities intended to boost diversity.

Decoding the Recent Ruling of US Supreme Court Regarding Affirmative Action
on June 29, 2023, in Students for Fair Admissions vs Harvard, the United States Supreme Court (SCOTUS) Students for Fair Admissions head Edward Blum filed two cases questioning the race-conscious admission practices of Harvard University and the University of North Carolina, reflects a growing sentiment that affirmative action has lost its moral force. Chief Justice John Roberts stated that eliminating racial discrimination means eliminating all of it.

The Supreme Court explained its decision using four main reasons:
First, the Supreme Court said that the part of the Constitution that talks about treating everyone equally doesn't consider a person's race, and it means treating everyone the same. So, giving advantages to people based on their race goes against this idea.

Second, the Supreme Court also said that if the government wants to do something that goes against treating everyone equally because of a compelling reason, like fixing a big problem, it has to have a really good reason for doing it. The state must articulate this goal clearly to enable judicial scrutiny. The court found Harvard and the UNC's objectives, such as "training future leaders", as commendable but vague.

Third, the Court reiterated an earlier ruling that affirmative action policies should have a 'sunset clause'. However, both Harvard and the UNC lacked this.

Finally, the court said that affirmative action should not use unfair beliefs about races or harm anyone based on their race. These were two things they found wrong in this case.

The Fourteenth Amendment to the US Constitution
The boldness of the court is in how it finds ways to go against the core principles of the Fourteenth Amendment in the US Constitution. The amendment was introduced in 1868, only a few years after the conclusion of the Civil War in 1865; thus, it was designed to safeguard the civil rights of the previously enslaved African-Americans. The court decided that the 'equal protection clause' should be used as it was originally intended because it means that nobody should face discrimination under this amendment. The court interpreted affirmative action policy to be violative of the equality rule as any kind of preferential treatment contradicts the true objective that the amendment envisioned.

US Supreme Court Ruling in the Past
The court had largely upheld race-conscious admissions for decades, though not without limits. In 1978, a split Supreme Court addressed the matter in a significant case known as Regents of the University of California v. Bakke2. This happened because educational institutions started using affirmative action in reaction to the Civil Rights movement to address the consequences of racial segregation. Justice Lewis Powell, the deciding vote, determined that educational institutions couldn't use affirmative action to correct historical racial discrimination. He also invalidated the university's policy of reserving specific spots for minority students.

However, Powell recognized that enhancing campus diversity was an important and strong reason because students from all racial backgrounds, not just minorities, would benefit from a richer educational experience by being exposed to diverse perspectives. Powell concluded that educational institutions could consider race in admissions as long as it was just one of several factors taken into account.

In Gratz v. Bollinger 3, the court struck down the University of Michigan's use of a system that awarded "points" to minority applicants as going too far, but affirmed Bakke's central finding that schools could use race as one of several admission factors.

In Fisher v. University of Texas 4, the US supreme court held that the race-conscious admissions program used by the University of Texas at Austin was lawful under the Equal Protection Clause of the Fourteenth Amendment.

Position in India in contrast to recent US supreme court ruling
The Indian and U.S. Constitutions are poles apart on how they treat affirmative action. The U.S. Constitution does not explicitly address affirmative action but instead focuses on prohibiting the denial of "equal protection." As a result, the interpretation of this vague term varies depending on the current justices serving on the Supreme Court. The United States aims to universally eradicate any form of racial distinctions, as the principle of equality must be consistent for all individuals. This principle extends to even initiatives like affirmative action, which are intended to address historical discrimination against African Americans, Hispanics, and other groups.

Consequently, any measures that differentiate between races in any way, including granting preferences in education, are strongly opposed as they violate the concept of equality. This strict interpretation of equality is referred to as formal equality and restricts U.S. courts from endorsing comprehensive race-conscious policies. In contrast, India does not apply the same approach to all racial or caste differences.

Specifically, groups like the Scheduled Castes, Scheduled Tribes, and Backward Classes, which have historically experienced discrimination, are not treated equally with other communities. To ensure these marginalized groups have access to equal opportunities, it is crucial that they are provided with reservations.

In State of Kerala Vs N.M. Thomas 5, Justice K.K. Mathew explained, "the notion of equality of opportunity has meaning only when a limited good or, in the present context, a limited number of posts, should be allocated on grounds which do not a priori exclude any section of citizens of those that desire it." Therefore, reservation is not in opposition to equality; rather, it is a mechanism that promotes equality.

This concept aligns with the idea of substantive equality and enables Indian courts to make pro-reservation rulings in accordance with the constitutional directive. In this context, a verdict similar to the Harvard University case is inconceivable within the Indian legal framework.

The Indian Constitution provides more explicit guidance, thanks to its framers, by expressly permitting affirmative action in favour of disadvantaged classes in both educational opportunities (Article 15) and employment opportunities (Article 16). In India, the courts often engage in discussions regarding specific details, such as determining the percentage of seats or positions that can be reserved by the state and the criteria for identifying beneficiary classes.

Unlike the United States, Indian courts do not engage in debates over the fundamental permissibility of affirmative action since the Constitution unequivocally addresses that question. As US supreme court ruling is regarding affirmative action in educational institutions, we will look forward about this matter in Indian context.

In State of Madras v. Champakam Dorairajan 6, the ruling is based on the contested Communal Government Order, which was enacted prior to independence and remained in effect long after the Constitution was enacted. This edict established a quota policy in state-run college institutions based on the caste system. The supreme court ruled that the government directive was null and invalid. This decision is significant because it addresses the contradiction between fundamental rights and state policy directive principles.

As a response to champakam case, Parliament enacted the first constitutional amendment, 1951 by which parliament added Article 15(4) which created a way to provide reservation as special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes.

In T.M.A. Pai Foundation vs State of Karnataka 7, it was held that the state could not make reservations of seats in admissions in privately run educational institutions. In private institutions admissions could be done on the basis of common admission test conducted by the state or these institutions or on the basis of merit.

In P.A. Inamdar vs State of Maharashtra 8, the position of T.M.A. Pai case was reiterated by not allowing the state to make reservation of seats in admission in privately run educational institutions. These cases led to the enactment of 93rd Constitutional Amendment,2006.Article 15(5) was added which empowered the state to make special provision like clause (4) but in relation to their admission to educational institutions (including private educational institutions) except minority institutions referred in Article 30(1).Clause (5) was added to article 15 in order to make the private educational institutions share the burden of government educational institutions in providing the citizens with greater access to education. It enabled the state to make provisions for the advancement of the SC, STs or SEBCs of citizens in relation to admission in educational institutions including private aided/unaided educational institutions.

In Ashok Kumar Thakur vs Union of India 9, addition of Article 15(5) was challenged as it was said to be violating the basic structure of the constitution and it was also asked whether exclusion of minority educational institutions from the purview of Article 15(5) is violative of Article 14 of the Constitution. The first issue was answered by the court in negative so far as it related to the state-maintained and aided educational institutions, the question was left open when it comes to 'Private Unaided' institutions. In relation to the second issue the court opined that minority educational institutions, by themselves, are a separate class and their rights are protected by other provisions of constitution.

Promoting social justice and inclusive policies
The United States and India should work towards establishing a society that firmly embraces the ideals of social justice and inclusiveness. It is essential to acknowledge the historical background in which these policies were put in place and the persistent challenges that marginalized groups continue to confront.

Instead of exclusively depending on preferences based on race or caste, it is advisable to implement comprehensive strategies that take into account various aspects of disadvantage, such as socioeconomic conditions and educational access. This approach will allow for a more refined and efficient method of advancing diversity and social justice.

Cases Referred:

1. Students for Fair Admissions v. Harvard, 600 U.S. (2023
2. Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
3. Gratz v. Bollinger, 539 U.S. 306 (2003)
4. Fisher v. University of Texas, 579 U.S. 365 (2016)
5. State of Kerala Vs N.M. Thomas, 1976 AIR 490 SC
6. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226
7. T.M.A. Pai Foundation vs State of Karnataka, (2002) 8 SCC 481
8. P.A. Inamdar vs State of Maharashtra, (2005) 6 SCC 537
9. Ashok Kumar Thakur vs Union of India, (1972) 1 SCC 660

Written By: Pinak Mohapatra, Pursuing LL.M. at National Forensic Sciences University, Gandhinagar