Though India and the US have implemented large and complicated affirmative action programmes over the last seven decades, these programmes seldom acknowledge or reference each other. By a curious coincidence, the Indian and US Supreme Court are currently deciding cases motivated by political and social discontent with race and caste conscious affirmative action. These decisions will certainly reshape, and potentially roll back, affirmative action policy and deserve the closest public attention.
On 7 November, five Judges of the Supreme Court of India delivered a split verdict in the Economically Weaker Sections reservation case (EWS). A three-judge majority agreed with the Union government on the three interconnected issues before the court.
The EWS case presents the court an old argument in a new legal form. In Champakam Dorairajan case, the first reservation case in the Supreme Court of India in 1950, the petitioners argued that ‘backward classes’ should be identified using economic class—household income or wealth—and not caste identity. The court rejected this argument and permitted the State to use caste identity as long as backward castes were identified using other relevant social criteria. In the 1993 Indra Sawhney case, the Supreme Court confirmed that a caste-based identification of ‘Other Backward Classes’ as reservation beneficiaries was constitutionally valid. Hence, unlike the US, there is no place for a caste-blind equality doctrine in Indian constitutional law to strike down caste-based affirmative action policy.
However, the latent political demand for economic class-based reservation has subsisted for seven decades. As previous legislative and executive strategies to implement such economic class-based reservation hit judicial roadblocks, the government introduced the Constitution (103rd Amendment) Act, 2019 with a new category of reservations for ‘economically weaker sections’ to be identified by ‘family income and other indicators of economic disadvantage.’ As a constitutional amendment may only be challenged on the grounds that it damages or destroys the basic structure doctrine, the EWS case focuses on this challenge.
Reservation in India has historically focused on group disadvantage. EWS reservations ostensibly emphasises individual economic status, untethered from social group identity. Inexplicably, the amendment excluded groups included in SC, ST or OBC reservation programmes from EWS category reservations. This exclusion robbed the individual focused economic class assessment for EWS reservation and transformed it into a forward class reservation programme. Historically, reservation programmes have been politically justified as a backward-looking limited measure to overcome social and economic disadvantages arising out of historical discrimination. The EWS reservation recasts affirmative action as a forward looking general anti-poverty and social mobility measure. The basic structure doctrine challenge, in this case, will require the Supreme Court to consider whether both backward and forward-looking justifications for reservations are constitutionally valid in India. The majority opinions found no constitutional infirmity with this exclusion, while the minority opinions found that this damages the basic structure of the Constitution.
In arguments, the Union government presented the EWS category as a carve out from the general category of applicants. While arguments for an intersectional view of individual disadvantage finds emphasis in some academic literature, the Indian courts have struggled to embrace this view. In cases where governments have set the ‘creamy layer’ income cut off for OBC reservation or sub-classified SC and OBC castes for compartmentalised reservation buckets, the court has been drawn into inconclusive and abstruse empirical enquiries with no clear judicially manageable standards.
Significantly, the EWS reservation of 10 per cent pushes the quantum of reservation above the court imposed 50 per cent limit. The Union government has argued that EWS reservations are merely a compartmentalised bucket within the general category of applicants (i.e., the forward classes). As the court-imposed 50 per cent limit applied only to backward classes reservation, EWS is not to be counted within this limit. This ingenious argument represents EWS as compartmentalised reservation among forward classes rather than a new vertical category of reservation. The majority accepted these arguments and Justice Maheshwari held that, “EWS reservation does not violate the equality code or violate essential feature of constitution and breach of 50 percent does not violate basic structure as the ceiling limit is here only for 16(4) and (5).”
Students for Fair Admission Inc
Last week, the US Supreme Court completed hearings in cases against race conscious affirmative action policies at Harvard University and the University of North Carolina. These cases were advanced by Students for Fair Admission Inc (SFFA), which was established by Edward Blum, a conservative political activist, to bring together students and parents to challenge race conscious affirmative action policies at US public universities. The core challenge in both cases is whether race conscious affirmative action in higher education on grounds of diversity is constitutionally permissible. In 1977, the US Supreme Court in Bakke, narrowly permitted it in higher education to promote diversity of the student body. This exception was confirmed by a larger majority in Grutter in 2003, which deferred to university administrators on admissions. SFFA petitioned the court to overrule Grutter.
During the recent marathon arguments for five hours, petitioners at the US Supreme Court emphasised that the diversity rationale cannot exclusively justify race-based affirmative action in favour of African American students or disadvantage lower class and Asian American applicants. Judicial interventions took predictable lines. Justices dissenting in previous cases asked when a student may benefit from affirmative action to confirm that universities relied on self-identification rather than a bureaucratic certification process; other Justices probed whether students who make legacy contributions or are children of alumni also benefit from the diversity justification. Justices Brett Kavanaugh and Amy Barrett asked if the 25-year time limit for diversity admissions in Grutter was binding. On the other side Justice Elena Kagan asked the petitioners to show that universities relied exclusively on race and not holistic criteria to make diversity-based admissions.
Earlier this year the US Supreme Court in Thomas Dobbs case overruled Roe vs Wade after five decades to remove the constitutional protection to a woman’s right to abortion. Hence, the prospects of the court overruling Bakke after four decades are real. Abandoning the narrow diversity exception has the potential to change the social composition of students entering US universities and set back the prospects of social mobility of disadvantaged groups.
The questions presented in the SFFA and EWS take different constitutional and legal forms but are grounded in similar political concerns. Despite, the efforts to recast EWS reservation as a sub-classification among forward class general category applicants, the EWS judgment will initiate a fundamental shift away from group-based and towards individual focused affirmative action policy. This will inevitably reduce the salience of caste identity in affirmative action policy in future decades. The upcoming decision in SFFA will determine the future of race conscious admissions in US universities. Read together, these cases will categorically reshape the political and legal foundations of affirmative action and equality for decades to come.
Sudhir Krishnaswamy is Vice-Chancellor, National Law School of India University, Bangalore and Managing Trustee, Centre for Law and Policy Research, Bangalore. Views are personal.
(Edited by Ratan Priya)