Introduction
Affirmative action policies in educational institutions have sparked profound legal discourse across the globe, particularly within pluralistic democracies such as the United States and India, where the pursuit of equality remains a cornerstone of constitutional interpretation. This paper examines the landmark Supreme Court of the United States (“SCOTUS”) decision in Students for Fair Admissions, Inc. (“SFFA”) v. President and Fellows of Harvard College,[2] [hereinafter, the “Harvard case”] which declared race-conscious admissions unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.[3] In contrast, India’s constitutional framework continues to support affirmative action through explicit provisions designed to address historical caste-based injustices.[4]
This paper analyses the factual background, legal issues, judicial opinions, and dissenting views in the Harvard case. The analysis contextualises the SCOTUS’s majority and dissenting opinions within broader constitutional interpretation frameworks, emphasising strict scrutiny and individual merit. It then transitions to an examination of India’s affirmative action policies, specifically under Articles 15 and 16 of the Indian Constitution, which, inter alia, provide for reservations based on caste, referred colloquially as “backward classes”, and more recently, economic disadvantages.
Indian judicial interpretation has evolved through key rulings, from Indira Sawhney[5] (1992) to Janhit Abhiyan[6] (2022). These judgments reveal a reliance on contextual and purposive interpretation, while balancing meritocracy with social justice. A comparative analysis underscores the divergent legal philosophies of the two countries, with the United States leaning toward race-neutral policies centred on merit and India embracing social justice-oriented affirmative action. The study concludes by exploring how courts apply various interpretative methods, such as textualism, originalism, and the living constitution doctrine, highlighting how judicial interpretation reflects unique societal values, historical legacies, and legal traditions.
Backdrop of the Harvard case and the SCOTUS ruling
A. Factual Backdrop
The Harvard case arose from allegations that its race-conscious admissions process discriminated against Asian-American applicants, thus violating the Equal Protection Clause of the Fourteenth Amendment. SFFA, a non-profit led by legal activist Edward Blum, claimed that Harvard’s admissions system used subjective criteria, including “personal ratings,” to disadvantage Asian-American applicants, while favoring Black and Hispanic students.
Harvard defended its policy by arguing that its race-conscious admissions practices promoted a diverse learning environment. Harvard invoked precedents such as Grutter v. Bollinger,[7] which permitted limited consideration of race in admissions as part of a holistic evaluation. Harvard maintained that its process ensured diverse representation without imposing explicit racial quotas.
The case reached the SCOTUS after lower courts upheld Harvard’s policy as consistent with existing affirmative action jurisprudence. The Supreme Court consolidated the Harvard case with SFFA v. University of North Carolina,[8]signaling its intent to reconsider the constitutional framework underpinning affirmative action in higher education admissions.
B. Issues and Arguments
The central issues before the Court concerned whether Harvard’s admissions process violated the Equal Protection Clause of the Fourteenth Amendment[9] and whether the policy could survive the constitutional requirement of strict scrutiny. Under this standard, any race-conscious policy must serve a compelling government interest and be narrowly tailored to achieve that interest.
SFFA argued that Harvard’s admissions process imposed racial balancing, disproportionately disadvantaging Asian-Americans. It contended that race-neutral alternatives, such as socio-economic considerations, could achieve diversity without explicit racial preferences. Harvard countered that its admissions process adhered to legal precedents established by Bakke[10] and Grutter.[11] Harvard emphasized that race was only one of many factors in its holistic admissions process, serving the compelling educational interest of fostering diversity.
C. Ruling and Judicial Analyses of the Judges
The SCOTUS ruled in a 6-3 decision that Harvard’s race-conscious admissions policy violated the Equal Protection Clause. Chief Justice Roberts delivered the majority opinion, supported by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, with Justices Sotomayor, Kagan, and Jackson dissenting.
D. The Majority Opinion
Chief Justice Roberts centered the majority opinion on the principle that the United States Constitution guarantees equal protection to all individuals, prohibiting race-based discrimination regardless of intent. He emphasized that affirmative action policies must satisfy strict scrutiny, serving a compelling governmental interest while being narrowly tailored. He declared, “Eliminating racial discrimination means eliminating all of it,” underscoring the Court’s rejection of policies that consider race in any capacity.[12]
The majority found that Harvard’s policy failed both prongs of the strict scrutiny test. First, the Court rejected the argument that fostering diversity was a sufficiently compelling interest because Harvard failed to define the specific educational benefits that its policy purported to achieve. Moreover, the Court noted that prior cases like Grutter had envisioned an eventual end to race-conscious admissions, suggesting that affirmative action could not be an indefinite practice.[13]
Second, the Court concluded that Harvard’s policy was not narrowly tailored. It criticized the university’s admissions system for treating race as a determinative factor in some cases, effectively amounting to racial balancing. As Chief Justice Roberts observed, “The admissions programs at Harvard and UNC lack sufficiently focused and measurable objectives warranting the use of race.”[14] The majority further argued that less discriminatory, race-neutral alternatives could achieve similar diversity goals.
E. Concurring Opinions
Justice Thomas wrote a separate concurring opinion emphasizing his long-held belief that the Constitution is “colorblind.” He argued that race-based classifications perpetuate stereotypes and social stigma, stating, “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to another.”[15] He contended that race-conscious policies undermine individual dignity and equality.
Justice Gorsuch also emphasized that policies involving racial classifications must meet exceptionally high constitutional standards. He dismissed Harvard’s justification as vague and insufficiently precise. Justice Kavanaugh similarly concluded that Harvard’s system failed to meet constitutional requirements, placing unfair burdens on Asian-American applicants.[16]
F. Relevant Precedents Cited
The majority relied on precedent from cases such as Bakke,[17] which allowed race as one factor in admissions but prohibited racial quotas. Grutter upheld limited race-based admissions policies, though it envisioned their eventual expiration. The majority also referenced Fisher v. University of Texas,[18] which narrowly upheld race-conscious admissions under strict scrutiny but foreshadowed limitations on such policies.
G. Analysis of the Dissenting Opinions
The dissenting opinions in the Harvard case reflected a fundamentally different understanding of the Equal Protection Clause. Justices Sotomayor, Kagan, and Jackson dissented, arguing that race-conscious admissions policies remain essential to achieving substantive equality in higher education and correcting historical discrimination.
Justice Sotomayor’s dissent emphasized the enduring reality of racial inequality in American society. She argued that the majority misinterpreted the Equal Protection Clause by ignoring structural inequalities that affirmative action addresses, stating, “Ignoring race will not equalize a society that is racially unequal.”
Sotomayor criticized the majority’s “formal equality” approach, which overlooks social and historical disadvantages. She asserted that the Fourteenth Amendment permits race-conscious policies to promote equal educational opportunity. Citing Grutter, where diversity in higher education was deemed a compelling interest, she argued that the majority’s decision abandoned this precedent, undermining stare decisis. “Deeming race irrelevant in law does not make it so in life,” she concluded.[19]
Justice Jackson wrote a separate dissent grounded in the lived realities of generational racial disadvantage. She highlighted the ongoing disparities in education, employment, and wealth distribution that result from the country’s legacy of racial segregation and discrimination. She declared, “Our country has never been colorblind. The judgment of history is clear—race matters.”[20]
Jackson criticized the majority for advancing a theoretical notion of equality divorced from social reality. She warned that eliminating race-conscious policies would reinforce structural inequalities by denying access to elite educational institutions for historically underrepresented communities. According to her, the Equal Protection Clause must be interpreted expansively to address entrenched inequalities rather than enforcing a superficial notion of fairness.
Justice Kagan joined Justice Sotomayor’s dissent while emphasizing the broader societal consequences of the majority’s decision. She warned that reduced diversity in higher education would weaken the democratic institutions that rely on well-informed, culturally competent leaders. Kagan expressed concern that the ruling would diminish diversity across the nation’s most influential academic and professional institutions.
The dissenting justices collectively emphasized several critical themes. First, they highlighted the historical and social context of racial inequality, contending that ignoring race in admissions decisions fails to remedy systemic inequities. Second, they advocated for a “living Constitution” approach, arguing that the Equal Protection Clause should evolve in response to contemporary social conditions. Third, they predicted that the ruling would cause an immediate and measurable decline in racial diversity at top universities, limiting access for underrepresented minority groups.
The dissents framed the majority’s decision as a retreat from the constitutional promise of equal opportunity, arguing that affirmative action is necessary to fulfill the Fourteenth Amendment’s objective of substantive equality. They concluded that dismantling race-conscious admissions policies would exacerbate societal disparities rather than promote true equality.
H. Broader Societal Implications of Affirmative Action
The implications of affirmative action extend beyond individual educational institutions, significantly influencing societal structures in both the United States and India. In the United States, empirical studies indicate that affirmative action policies have contributed to increased diversity within higher education, which in turn fosters a more inclusive environment that benefits all students.[21] For instance, a National Bureau of Economic Research study found that students from diverse backgrounds in college settings are more likely to engage in discussions about race and inequality, thus enhancing their educational experience and preparing them for a multicultural workforce.[22] Conversely, the recent ruling against race-conscious admissions could lead to decreased representation of minority groups in elite institutions, potentially widening existing socioeconomic disparities and limiting access to opportunities for historically marginalized communities.[23] In India, affirmative action has played a critical role in addressing caste-based inequalities by providing reserved seats in educational institutions and government jobs for the so-called “backward classes” – comprising of Scheduled Castes, Scheduled Tribes, and “Other Backward Classes” – which are historically marginalized and socio-economically disadvantaged groups. These “backward classes” are recognized by the Constitution for affirmative action policies aimed at ensuring their educational, social, and economic upliftment through reservations in education, employment, and political representation.
Research shows that these policies have significantly improved educational attainment and economic mobility for these groups, contributing to a gradual but meaningful shift toward greater social equity.[24] However, challenges remain, as debates continue regarding the effectiveness and implementation of these policies. The contrasting approaches to affirmative action reflect deeper societal values and historical contexts, underscoring its role as a tool for social justice in both nations.
Why Interpretations Differ in India
The interpretation of affirmative action in India differs significantly from the United States due to the two countries’ distinct historical contexts, constitutional frameworks, and socio-political legacies. While the United States follows a tradition of individual rights and formal equality under the law, India’s constitutional interpretation has traditionally centered on substantive equality, emphasizing social justice and affirmative action as essential tools for correcting historical injustices. This divergence reflects the unique historical trajectories and legal philosophies that have shaped each nation’s understanding of equality.
A. Historical Context and Social Inequality
India’s historical experience with the caste system, an entrenched socio-religious hierarchy, has profoundly influenced its legal and constitutional approach to affirmative action. For thousands of years, marginalized communities, particularly Scheduled Castes, Scheduled Tribes, and Other Backward Classes, were subjected to severe discrimination, social exclusion, and economic deprivation. This historical reality necessitated corrective measures after India gained independence in 1947.
Recognizing the need to address systemic oppression, the framers of the Indian Constitution explicitly incorporated provisions ensuring social, economic, and political justice. The Preamble of the Indian Constitution declares the nation’s commitment to securing “Justice—social, economic, and political.”[25] Affirmative action, commonly referred to as “reservations,” was designed as a constitutional mechanism to redress historical wrongs and create equal opportunities for disadvantaged communities.
In contrast, the United States constitutional framework emerged from a history of colonial rebellion, slavery, and civil rights struggles, focusing on individual liberty and protection against state interference. The legacy of racial discrimination in the United States led to the development of the Civil Rights Movement, prompting legislative and judicial efforts to achieve racial equality. However, the constitutional interpretation in the United States has primarily centered on the principle of formal equality, limiting the scope of affirmative action through judicial doctrines such as strict scrutiny.
B. Philosophical Differences: Formal vs. Substantive Equality
The key distinction between the United States and Indian legal frameworks lies in their philosophical approach to equality. The SCOTUS has traditionally adhered to the principle of formal equality, which mandates that all individuals must be treated equally under the law, regardless of their socio-economic backgrounds. This approach underpins landmark decisions such as the Harvard case, where the Court interpreted the Equal Protection Clause as prohibiting any race-based classifications.
India’s Supreme Court, however, operates on the principle of substantive equality, recognizing that treating unequal groups equally perpetuates systemic inequalities. In cases like Indira Sawhney, the Court affirmed that affirmative action policies are essential for achieving real equality, as they correct historical disadvantages and ensure representation for marginalized communities.[26] This interpretation reflects a broader understanding of equality, grounded in social justice and affirmative state action.
The Indian judiciary has repeatedly emphasized that reservations and affirmative action are not privileges but constitutionally mandated rights aimed at ensuring fairness and equal opportunity. The state’s duty to uplift disadvantaged communities is framed as a constitutional obligation rather than an exception to the principle of equality.
C. Directive Principles of State Policy
Another key distinction lies in the constitutional structure itself. While the United States Constitution primarily guarantees negative rights—protection from state interference—the Indian Constitution includes both negative and positive rights. Part IV of the Indian Constitution, titled “Directive Principles of State Policy”, explicitly directs the state to promote social welfare and equality.[27]
Article 46, for instance, mandates that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”[28] While DPSPs are non-justiciable, meaning they are not legally enforceable by courts, they serve as guiding principles for legislative and executive action, shaping affirmative action policies in education, employment, and political representation.
No similar constitutional provision exists in the United States, where courts rely on a narrower interpretation of the Equal Protection Clause. The SCOTUS is constrained by textualist interpretations that focus on the original meaning of constitutional provisions rather than evolving societal contexts.
D. Judicial Activism and Constitutional Interpretation in India
India’s judiciary has played an active role in expanding affirmative action policies through judicial activism. The landmark case of Kesavananda Bharati saw the Supreme Court establish the “Basic Structure Doctrine,” ruling that constitutional amendments cannot alter the fundamental principles of the Constitution, including equality and social justice.[29] This doctrine has allowed the judiciary to protect affirmative action policies from legislative rollbacks while expanding their scope through judicial interpretation.
The Indian Supreme Court has frequently interpreted affirmative action provisions expansively, using purposive interpretation to ensure that constitutional principles are applied in a socially relevant manner. For example, in M. Nagaraj v. Union of India, the Court upheld the constitutionality of reservations in promotions but imposed specific criteria such as proving backwardness and administrative inefficiency.[30] Similarly, in Jarnail Singh v. Lachhmi Narain Gupta, the Court removed the backwardness requirement for Scheduled Castes and Scheduled Tribes in promotions, expanding affirmative action protections in the public sector.[31]
By contrast, the SCOTUS has traditionally remained more restrained in its judicial role, adhering to principles of stare decisis and textualism. While cases like Brown v. Board of Education reflect judicial activism in addressing racial segregation, the Court has largely limited affirmative action through restrictive interpretations of the Equal Protection Clause.[32]
E. Legal Pluralism and Cultural Context
India’s unique legal pluralism has also shaped its affirmative action jurisprudence. Given the country’s diverse social, religious, and cultural landscape, the judiciary has often adapted its interpretations to accommodate various societal needs. Affirmative action policies in India extend beyond caste-based reservations to include economic criteria, as evidenced by the 103rd Constitutional Amendment, which introduced a 10% reservation for Economically Weaker Sections (EWS).[33] This expansion reflects a dynamic legal interpretation responsive to changing socio-economic realities.
In contrast, United States affirmative action policies have been limited to addressing race-based inequalities, with courts consistently rejecting broader socio-economic considerations. This narrower framework has constrained the judiciary’s ability to implement affirmative action beyond racial classifications.
F. Divergent Interpretative Philosophies
The differing interpretations of affirmative action in India and the United States underscore two fundamentally distinct constitutional philosophies. India’s constitutional framework emphasizes social justice through affirmative action, driven by a historical need to dismantle caste-based inequality. In contrast, the United States legal system prioritizes individual merit and formal equality, limiting affirmative action through a colorblind interpretation of the Equal Protection Clause.
These interpretative differences highlight the role of historical context, constitutional design, and judicial philosophy in shaping affirmative action policies. While India’s affirmative action model continues to evolve through legislative amendments and judicial interpretations, the United States has moved toward restricting race-conscious policies, reflecting divergent paths in the pursuit of equality and social justice.
Statutes and Constitutional Provisions Governing Affirmative Action
India’s constitutional and legal framework explicitly enshrines affirmative action policies aimed at rectifying historical inequalities caused by the caste system. These provisions are primarily embedded in Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Indian Constitution. They empower the state to promote social justice and equal opportunity through reservations in education, employment, and political representation. This section provides a detailed examination of relevant constitutional provisions and key legislative enactments supporting affirmative action in India.
A. Constitutional Provisions
India’s constitutional framework for affirmative action ensures reservations in public employment, education, and legislative representation for historically disadvantaged communities, including Scheduled Castes, Scheduled Tribes, Other Backward Classes, and the newly, included Economically Weaker Sections. Several constitutional provisions and legislative acts support these measures.
Article 15 prohibits discrimination based on religion, race, caste, sex, or place of birth. Article 15(4), introduced through the First Amendment of 1951, allows special provisions for the advancement of socially and educationally backward classes, Scheduled Castes, and Scheduled Tribes. Article 15(5), added by the 93rd Amendment in 2005, extends these reservations to private educational institutions, excluding minority institutions.[34] The 103rd Amendment of 2019 introduced Article 15(6), enabling 10% reservations for Economically Weaker Sections in educational institutions, including private unaided institutions.[35] Article 16 guarantees equal opportunity in public employment while permitting reservations for disadvantaged groups. Article 16(4) allows reservations for backward classes inadequately represented in public services.[36] The 77th Amendment of 1995 added Article 16(4A), enabling reservations in promotions for Scheduled Castes and Scheduled Tribes, while Article 16(4B) allows carrying forward unfilled reserved vacancies. Article 16(6), introduced by the 103rd Amendment, provides a 10% reservation for EWS in public employment.[37]Article 46, under the Directive Principles of State Policy, directs the State to promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections while protecting them from social injustice and exploitation.[38] Article 334 mandates the reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and State Legislative Assemblies. Initially set for 10 years, this provision has been regularly extended through constitutional amendments.[39] The 103rd Constitutional Amendment marked a significant development by introducing EWS reservations, though its exclusion of Scheduled Castes, Scheduled Tribes, and Other Backward Castes has been controversial.[40]
Overall, India’s legal framework balances social justice with merit-based selection, embedding affirmative action into the constitutional fabric to address structural inequalities and promote equitable opportunities for all.
Judicial Interpretation of Affirmative Action in India
The Indian judiciary has played a crucial role in defining the constitutional boundaries of affirmative action through landmark rulings that balance equality, reservations, and social justice. The Supreme Court of India has interpreted constitutional provisions on backwardness, reservation limits, and legislative amendments, shaping a dynamic affirmative action framework.
Initially, the judiciary emphasized formal equality, as seen in State of Madras v. Champakam Dorairajan, where caste-based quotas were struck down under Article 15(1).[41] In response, Parliament enacted the First Constitutional Amendment, adding Article 15(4), allowing special provisions for socially and educationally backward classes, Scheduled Castes, and Scheduled Tribes, forming the basis of reservation policies.[42]
The scope of affirmative action expanded with M.R. Balaji v. State of Mysore, where the Court ruled that caste could not be the sole criterion for backwardness, introducing a 50% reservation cap.[43] This principle was reaffirmed in Indira Sawhney, where the Court upheld Other Backward Castes reservations while introducing the “creamy layer” concept to exclude economically advanced Other Backward Castes from benefits. It also reinforced the 50% reservation limit and permitted judicial review of backwardness criteria.[44]
Public employment reservations evolved through M. Nagaraj, where the Court upheld promotions for SCs and STs but required the state to prove backwardness, inadequate representation, and administrative efficiency.[45] This requirement was later removed in Jarnail Singh acknowledging historical discrimination against SCs and STs.[46]
The introduction of Articles 15(6) and 16(6) through the 103rd Constitutional Amendment, enabling 10% reservations for Economically Weaker Sections, was upheld in Janhit Abhiyan by a 3-2 majority. The Court ruled that economic disadvantage could justify affirmative action, though dissenting judges argued that excluding Scheduled Castes, Scheduled Tribes, and Other Backward Castes from Economic Weaker Sections reservations violated the Constitution’s equality principle.[47]
Through evolving interpretations, the judiciary has transitioned from a formal equality approach to a justice-oriented framework, embedding affirmative action into India’s constitutional fabric while balancing meritocracy with social equity. The basic structure doctrine, established in Kesavananda Bharati, was also deployed by the judiciary to protect and expand affirmative action policies, ensuring they remain constitutionally sound despite changing political and social contexts.[48]
India’s judicial interpretation of affirmative action demonstrates a progressive evolution from a narrow, formal understanding of equality to a broader, justice-oriented framework. The judiciary has sought to balance meritocracy with social equity by establishing principles such as determining backwardness based on socio-economic criteria, enforcing a 50% reservation cap, and applying the “creamy layer” exclusion, which disqualifies economically advanced individuals within the Other Backward Classes from availing reservation benefits to ensure affirmative action reaches the genuinely disadvantaged.[49] Through a dynamic and adaptive approach, India’s courts have institutionalized affirmative action as a permanent feature of its constitutional landscape, reflecting an ongoing commitment to achieving substantive equality.
Affirmative Action: A comparative analysis between India and the United States
The approaches to affirmative action in the United States and India diverge fundamentally due to differences in constitutional design, historical legacies, judicial interpretation, and socio-political contexts. While both countries grapple with issues of social inequality, their legal responses reflect distinct principles of equality, ranging from individual rights-based protections in the United States to group-focused social justice measures in India.
The historical contexts underpinning affirmative action in the United States and India are starkly different. In the United States, the policy emerged as a response to racial discrimination stemming from slavery, segregation, and systemic exclusion of African Americans from educational, political, and economic institutions. The United States civil rights movement led to landmark legislative reforms, including the Civil Rights Act of 1964, which outlawed segregation and discrimination based on race, color, religion, sex, or national origin. The subsequent incorporation of affirmative action in higher education and employment aimed to redress the enduring effects of institutionalized racism.
India’s affirmative action framework, in contrast, is deeply rooted in its historical experience with the caste system. This rigid social hierarchy, entrenched for millennia, marginalized entire communities such as Scheduled Castes, Scheduled Tribes, and Other Backward Classes. Following independence in 1947, the framers of the Indian Constitution recognized the urgent need for social justice measures to uplift these historically disadvantaged groups. Affirmative action in India, therefore, is constitutionally mandated, reflecting a broad commitment to rectifying centuries of social injustice through reservations in education, employment, and political representation.
The United States constitutional framework emphasizes formal equality, grounded in the Equal Protection Clause of the Fourteenth Amendment. This provision guarantees that “no State shall… deny to any person within its jurisdiction the equal protection of the laws.”[50] The SCOTUS has consistently interpreted this clause through the lens of individual rights, emphasizing that laws must treat individuals equally regardless of race or ethnicity. This interpretation has led to the application of “strict scrutiny” – a standard of judicial review requiring that race-based policies serve a compelling governmental interest and be narrowly tailored to achieve that interest.
In contrast, the Indian Constitution explicitly endorses affirmative action through provisions such as Articles 15 and 16, which allow for reservations in education and public employment. These provisions are supplemented by Articles 46 and 334, which direct the state to promote the welfare of disadvantaged communities and reserve seats for Scheduled Castes and Scheduled Tribes in legislative bodies. The principle underlying these provisions is substantive equality, which recognizes that treating unequal groups equally perpetuates systemic disadvantages. India’s affirmative action framework thus reflects a constitutional mandate for corrective justice, allowing positive discrimination as an essential tool for achieving equality.
Judicial interpretation in the two countries further underscores their differing approaches. In the United States, the Supreme Court has historically balanced competing principles of equality and diversity. Early rulings such as Bakkeupheld the limited consideration of race in college admissions while striking down racial quotas.[51] Similarly, in Grutter, the Court affirmed that promoting campus diversity was a compelling state interest but stressed that such policies must be temporary.[52] The Court’s subsequent rulings, culminating in the Harvard case, effectively ended race-conscious admissions, reaffirming a “colorblind” interpretation of the Equal Protection Clause.
The colorblind interpretation of the Equal Protection Clause asserts that laws should treat individuals equally without considering race, promoting a formal equality framework. However, this approach has been critiqued for ignoring persistent structural inequalities rooted in historical discrimination. Treating everyone the same assumes a level playing field, which rarely exists due to disparities in access to education, employment, and political representation. Critics argue that this interpretation perpetuates inequality by preventing policies like affirmative action that aim to address socio-economic disparities. Moreover, the colorblind approach often undermines affirmative action and race-conscious remedies designed to correct historical injustices. It narrowly interprets the Equal Protection Clause as forbidding all race-based policies, rather than enabling corrective measures. The Harvard case and Parents Involved v. Seattle School highlight how race-neutral interpretations have curtailed diversity efforts. Critics maintain that the Clause’s true purpose is to dismantle entrenched inequalities, not enforce a rigid race-neutral standard detached from social realities.[53]
India’s judiciary has taken a more expansive approach, interpreting constitutional provisions on equality as enabling rather than restricting affirmative action. From the literal interpretation in Champakam Dorairajan, which struck down caste-based quotas as unconstitutional, prompting the First Constitutional Amendment to introduce Article 15(4) authorizing affirmative action, to Indira Sawhney, which established a comprehensive legal framework for reservations, the judiciary has institutionalized affirmative action as a permanent feature of Indian constitutional law through continuous review and refinement of reservation policies.[54] The United States and Indian approaches also diverge in how affirmative action policies are implemented. In the United States, affirmative action is largely court-regulated and time-limited, with no constitutional mandate for its continuation. Universities and employers must justify race-conscious policies on a case-by-case basis, subject to strict judicial oversight. By contrast, India’s affirmative action policies are constitutionally guaranteed and legislatively mandated, with reservations extending to public-sector employment, higher education, and political representation. Amendments such as the 103rd Constitutional Amendment, which introduced reservations for Economically Weaker Sections, demonstrate India’s evolving and expanding affirmative action framework.
The contrasting legal philosophies of the two countries reflect deeper societal values. The United States emphasis on formal equality stems from a liberal democratic tradition focused on individual merit, personal responsibility, and protection against state overreach. This philosophy is evident in Supreme Court rulings that have progressively narrowed the scope of affirmative action, culminating in the Harvard decision, where the Court reiterated that race-based preferences violate the principle of equal treatment under the law.
India’s constitutional commitment to substantive equality, by contrast, stems from a historical need for systemic correction through state intervention. The Indian judiciary has repeatedly emphasized that affirmative action is not a temporary policy, but a constitutional obligation designed to promote social justice. This approach aligns with the country’s broader vision of transformative constitutionalism, which seeks to reshape deeply ingrained social hierarchies through affirmative state action.
The comparative analysis also reveals notable differences in legislative intervention. In the United States, affirmative action policies have primarily been shaped by court rulings and executive orders, with Congress playing a limited role. In India, affirmative action has been institutionalized through a series of constitutional amendments and legislative enactments, including the Central Educational Institutions (Reservation in Admission) Act, the Right to Education Act, and the Prevention of Atrocities Act. These laws complement constitutional provisions, ensuring affirmative action’s continued implementation despite political changes.
In conclusion, the United States and Indian approaches to affirmative action reflect fundamentally different legal, historical, and constitutional traditions. While the United States model emphasizes race-neutral policies and individual merit, India’s framework prioritizes social justice and group-based equality. These differences underscore the profound influence of each country’s unique socio-political context on its legal interpretation of affirmative action, highlighting the role of constitutional design, judicial philosophy, and legislative action in shaping policies that seek to balance equality with social progress.
Constitutional Interpretations by Courts and Legislatures
The interpretation of constitutional provisions plays a crucial role in shaping affirmative action policies in both the United States and India. Courts in both countries have developed distinct methods of constitutional interpretation influenced by their legal traditions, political histories, and societal values. This section examines key interpretative approaches, highlighting how judicial philosophies have influenced affirmative action jurisprudence in both legal systems.
A. Interpretation Methods in the United States
The SCOTUS relies on well-defined methods of constitutional interpretation rooted in its common law tradition and adversarial legal system. These methods include textualism, originalism, doctrinal interpretation, pragmatism, and the living constitution approach. The choice of interpretive method often determines how affirmative action cases are decided under the Equal Protection Clause of the Fourteenth Amendment.
Textualism, one of the most influential interpretive methods, requires judges to interpret constitutional provisions according to the plain meaning of the text as understood at the time of enactment. Justice Thomas’ concurring opinion in the Harvard case exemplified this approach, emphasizing the text of the Equal Protection Clause as prohibiting all race-based classifications. He argued that “equal protection” guarantees a colorblind Constitution, rejecting any policy involving racial preferences.
Originalism, closely related to textualism, considers the framers’ intent when interpreting constitutional provisions. Justice Scalia was a notable proponent of this approach, arguing that the Constitution must be understood based on its original public meaning. In affirmative action cases, originalist justices have consistently opposed race-conscious policies, arguing that the framers intended the Equal Protection Clause to ensure formal equality under the law.
Doctrinal interpretation focuses on precedent and the principle of stare decisis, which requires courts to follow prior rulings for consistency and predictability. This method was critical in Grutter while upholding race-conscious admissions, relying on the precedent set in Bakke.[55] However, the Harvard decision marked a departure from this doctrine, as the Court abandoned decades of precedent in favor of a strict interpretation of race-neutral admissions.
Pragmatism, or consequentialist interpretation, evaluates the broader social consequences of judicial rulings. Dissenting justices in the Harvard case invoked this approach, warning that eliminating affirmative action would reduce diversity in elite educational institutions and exacerbate social inequality. Justice Sotomayor’s dissent reflected a pragmatic perspective, emphasizing the real-world consequences of ignoring race in admissions decisions.
The living constitution approach views the Constitution as a dynamic document that evolves with societal changes. This interpretive method influenced landmark rulings such as Brown, where the Court recognized that racial segregation in schools was incompatible with modern understandings of equality.[56] However, the living constitution approach has fallen out of favor in recent affirmative action rulings, with the Court favoring a textualist and originalist perspective.
B. Interpretation Methods in India
The Indian judiciary has developed its own interpretive methods shaped by the country’s unique constitutional design and socio-economic realities. These methods include textual interpretation, contextual interpretation, the basic structure doctrine, purposive interpretation, and judicial activism centered on social justice. These methods have allowed the Supreme Court of India to expand and refine affirmative action policies over time.
Textual interpretation requires judges to adhere to the literal meaning of constitutional provisions. This method influenced the Court’s early ruling in Champakam Dorairajan as caste-based quotas under Article 15(1) were struck down, adhering strictly to the Constitution’s prohibition of discrimination.[57] However, the resulting backlash led to the First Constitutional Amendment, introducing Article 15(4), which explicitly authorized affirmative action for socially and educationally backward classes.
Contextual interpretation considers the social, political, and historical context in which constitutional provisions are applied. This approach played a central role in Indira Sawhney, where the Court contextualized the term “backward classes” in Article 16(4), interpreting it to include Other Backward Castes based on socio-economic indicators.[58] The Court emphasized that caste, while relevant, could not be the sole determinant of backwardness and established the concept of the “creamy layer” to exclude affluent Other Backward Castes members from reservations.
The basic structure doctrine, established in Kesavananda Bharati, asserts that certain constitutional principles, including equality, justice, and social welfare, are fundamental and cannot be altered through constitutional amendments.[59] This doctrine has been pivotal in safeguarding affirmative action policies, ensuring that constitutional amendments such as the 77th, 81st, and 103rd Amendments withstand judicial scrutiny.
Purposive interpretation requires judges to interpret constitutional provisions in a way that fulfills their intended purpose. This method guided the Court in M. Nagaraj where the Court upheld reservations in promotions for Scheduled Castes and Scheduled Tribes but imposed safeguards such as proving backwardness and ensuring administrative efficiency.[60] The Court interpreted Articles 16 (4A) and 16 (4B) purposively to balance social justice with merit-based governance.
Judicial activism, characterized by proactive judicial intervention, has played a critical role in shaping India’s affirmative action policies. In Jarnail Singh, the Supreme Court removed the backwardness requirement for Scheduled Castes and Scheduled Tribes in promotions, arguing that historical marginalization justified affirmative action without additional proof of backwardness.[61] This somewhat activist stance reflects a commitment to transformative constitutionalism, where the judiciary actively advances social justice through progressive interpretations.
C. Legislative Role in Constitutional Interpretation
In both countries, legislative intervention has influenced the development of affirmative action policies. In the United States, affirmative action policies have been shaped by landmark legislation such as the Civil Rights Act, 1964 and the Voting Rights Act, 1965. However, legislative action has played a limited role compared to judicial rulings, with the United States Congress unable to override Supreme Court decisions on constitutional matters.
In India, the legislative role has been far more significant due to the Constitution’s flexibility and amendable structure. Parliament has enacted several constitutional amendments to expand affirmative action, including the 93rdAmendment – enabling reservations in private educational institutions, and the 103rd Amendment – introducing EWS reservations. These amendments reflect an ongoing legislative commitment to ensuring affirmative action policies remain relevant amid evolving socio-economic challenges.
D. Comparative Analysis of Interpretive Methods
The United States and Indian legal systems reflect divergent constitutional philosophies through their interpretation methods. The United States courts prioritize individual rights and formal equality through textualist and originalist interpretations, limiting race-based affirmative action. In contrast, India’s courts embrace social justice and substantive equality through contextual, purposive, and activist interpretations, expanding the scope of affirmative action.
In conclusion, the contrasting interpretive methods employed by courts and legislatures in the United States and India reflect distinct constitutional visions. While the United States model emphasizes limited government intervention and individual merit, India’s legal framework prioritizes social welfare and corrective justice. These interpretive differences underscore the influence of historical legacies, societal needs, and constitutional design on affirmative action policies in both democracies.
[1] Bhrigu A. Pamidighantam, LLM Candidate, UC Berkeley School of Law, 2024-25.
[2] Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
[3] Amend. XIV, United States Constitution, 1787.
[4] Articles 15 & 16, Constitution of India, 1950.
[5] Indira Sawhney v. Union of India, AIR 1993 SC 477.
[6] Janhit Abhiyan v. Union of India, 2022 SCC OnLine SC 1540.
[7] Grutter v. Bollinger, 539 U.S. 306 (2003).
[8] Students for Fair Admissions, Inc. v. University of North Carolina, 600 U.S. 181 (2023).
[9] U.S. Const. amend. XIV.
[10] Regents of the University of California v. Bakke 438 U.S. 265 (1978).
[11] Grutter v. Bollinger, 539 U.S. 306 (2003).
[12] Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
[13] Grutter v. Bollinger, 539 U.S. 306 (2003).
[14] Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
[15] Id.
[16] Id.
[17] Regents of the University of California v. Bakke 438 U.S. 265 (1978).
[18] Fisher v. University of Texas, 579 U.S. 365 (2018).
[19] Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
[20] Id.
[21] Leah Shafer, ‘The Case for Affirmative Action’, dated 11 July, 2018 <https://www.gse.harvard.edu/ideas/usable-knowledge/18/07/case-affirmativeaction?utm> accessed on 13 November, 2024.
[22] National Bureau of Economic Research, ‘Race and Ethnicity in the College Classroom’, dated 01 January, 2012, <https://www.nber.org/digest/jan12/race-and-ethnicity-college-classroom> accessed on 13 November, 2024.
[23] Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
[24] Rachel Gisselquist & M.J. Kim, ‘Affirmative Action Policies to Increase Diversity Are Successful, but Controversial, Around the World’ dated 28 February, 2024 <https://unu.edu/article/affirmative-action-policies-increase-diversity-are-successful-controversial-around-world#:~:text=Article,Affirmative%20Action %20Policies%20to%20Increase%20Diversity%20Are%20Successful%2C%20but%20Controversial,encourage%20diversity%20without%20implementing%20quotas> accessed on 10 November, 2024.
[25] Preamble §3, Constitution of India, 1950.
[26] Indira Sawhney v. Union of India, AIR 1993 SC 477.
[27] Articles 36-51, Constitution of India, 1950.
[28] Article 46, Constitution of India, 1950.
[29] His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr., (1973) 4 SCC 225.
[30] M. Nagaraj v. Union of India, (2006) 8 SCC 212 196.
[31] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.
[32] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
[33] Constitutional Amendment CIII, Constitution of India, 1950.
[34] Article 15, Constitution of India, 1950.
[35] Constitutional Amendment CIII, Constitution of India, 1950.
[36] Article 16(4), Constitution of India, 1950.
[37] Article 16(6), Constitution of India, 1950.
[38] Article 46, Constitution of India, 1950.
[39] Article 334, Constitution of India, 1950.
[40] Constitutional Amendment CIII, Constitution of India, 1950.
[41] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
[42] Article 15(4), Constitution of India, 1950.
[43] M.R. Balaji v. State of Mysore, 1963 AIR 649.
[44] Indira Sawhney v. Union of India, AIR 1993 SC 477.
[45] M. Nagaraj v. Union of India, (2006) 8 SCC 212 196.
[46] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.
[47] Janhit Abhiyan v. Union of India, 2022 SCC OnLine SC 1540.
[48] His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr., (1973) 4 SCC 225.
[49] Indira Sawhney v. Union of India, AIR 1993 SC 477.
[50] Amend. XIV, United States Constitution, 1787.
[51] Regents of the University of California v. Bakke 438 U.S. 265 (1978).
[52] Grutter v. Bollinger, 539 U.S. 306 (2003).
[53] Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
[54] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
Indira Sawhney v. Union of India, AIR 1993 SC 477.
[55] Grutter v. Bollinger, 539 U.S. 306 (2003).
[56] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
[57] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
[58] Indira Sawhney v. Union of India, AIR 1993 SC 477.
[59] His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr., (1973) 4 SCC 225.
[60] M. Nagaraj v. Union of India, (2006) 8 SCC 212 196.
[61] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.
Bhrigu A. Pamidighantam 
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