Comparative analysis of affirmative

action in India and U.S.A

Affirming the Affirmative

- DHRUVA SAREEN & PURAV SHAH

- NATIONAL LAW UNIVERSITY, JODHPUR
 -

TABLE OF CONTENTS
Table of Contents ...................................................................................................................... 2

Introductory Remarks ................................................................................................................ 3

Affirmative action in India ........................................................................................................ 6

March of Law......................................................................................................................... 6

Affirmative Action in the United States of America ............................................................... 11

Beneficiaries of Affirmative Action ........................................................................................ 14

Beneficiaries of Affirmative Action in India ....................................................................... 14

Beneficiaries of Affirmative Action in the Unites States of America ................................. 15

Concept of Equality in the Two Nations.................................................................................. 18

Notion Equality in India ...................................................................................................... 18

Notional Equality in the United States ................................................................................ 18

Cross Cultural Influences In Relation To Affirmative Action ................................................ 19

American Influences on the Development of Indian Affirmative Action ........................... 19

Indian Influences on the American Caste System and Affirmative Action ......................... 21

Plausible Prospects of Further Nexus on Affirmative Action Policies between the two nations
..................................................................................................................................................24

Conclusion ............................................................................................................................... 28

Bibliography ............................................................................................................................ 29

Cases .................................................................................................................................... 29

Treatises ............................................................................................................................... 30

Constitutional Provisions ..................................................................................................... 31

Research Papers ................................................................................................................... 31

Other Authorities ................................................................................................................. 32

2|Page
 INTRODUCTORY REMARKS
Awash with hortatory declarations and resolutions, international human rights law is often
criticized as too "soft," as lacking "teeth.'1 Indeed, even the "hardest" human rights standards,
the binding multi-lateral treaties, include little means of enforcement beyond international
scrutiny, which would exist even without human rights law.2 For this reason, human rights
norms embedded in national legislation take on an even more important character, and there
are few places where international human rights law enters the domestic sphere so directly,
and potently, as with affirmative action.3 As the name implies, affirmative action is an active,
dynamic force. This force strikes at the heart of social power structures taken to the extreme,
affirmative action is a powerful tool for badly-needed redistribution of social wealth.6 In a
world where human rights norms are mostly declaring or recommending, affirmative action is
acting.

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.4 Countries like India, on a parallel, have adopted affirmative action to deal
with the disadvantaged segments of their populations5.

Affirmative action is a coherent packet of measures, of a temporary character, specifically

aimed at correcting the position of the members of a target groups in one or more aspects of
their social life, in order to obtain effective equality.6

The ideal situation might have had been to see only the meritorious students irrespective of
caste, creed, sex, place of birth, domicile are treated equally, but history is replete with
1
Bederman, David, International Law Framework, California: West Academic Publishers: Foundation Press,
2011, p.7
2
C. Heyns & F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level.
(2001) 23 Human Rights Quarterly 483
3
Christopher McCrudden, Rethinking Positive Action, 15 INDUS. L. J. 219, 220-21 (1986)
4
Laurence H. Tribe, American Constitutional Law, Vol. 1, 3rd Edn., 1978, California: West Academic
Publishers: Foundation Press, p. 56
5
Foster, Jason Morgan, From Hutchins Hall To Hyderabad And Beyond: A Comparative At Affirmative Action
In Three Jurisdictions, Vol.9 Iss. 1, 9 Wash. & Lee Race & Ethnic Anc. L. J. 73 (2003)
6
Bossuyt , M, Prevention of Discrimination – The Concept and Practice of Affirmative Action , Commission
on Human Rights, United Nations, 2002, p.3

3|Page
situations that India is not ready therefor. Sociological conditions prevalent in the country
compelled the country to being in Articles 15 and 16. The said articles for all intent and
purport, are species of Article 14 which is a genus in the sense that they provide for an
exception to the equality clause.7 Preference to a class of persons whether based on caste,
creed, religion, place of birth, domiciles or residence is embedded in our constitutional
scheme. Whereas larger interest of the country must be perceived, the lawmakers cannot shut
the eyes to the local needs also. Such local needs must receive due consideration keeping in
view the duties of the state contained in Article 41 and 47 of the Indian Constitution.8

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 Marc Galanter
refers to India's affirmative action programs.9

The current scope of affirmative action programmes is best understood as a consequence and
continuation of efforts to remedy the oppression of racial and ethnic minorities and of
women. In the US some affirmative action efforts began before the great burst of civil rights
statutes in the 1950's and 1960's. However, in the USA and India, affirmative action efforts
did not truly take hold until it became clear that anti-discrimination statutes alone were not
enough to break longstanding patterns of discrimination.10 The historical background to
affirmative action in the two countries shows that the approach to affirmative action
concentrates on a history of injustice and is an attempt to end discrimination against certain
individuals and groups of a population.

7
Datar, Arvind P., Commentary on the Constitution of India, Vol. 1, Nagpur: Butterworths Wadhwa, 2nd Edn.,
2007, p. 222
8
Saurabh Chaudri v Union of India, AIR 2004 SC 361
9
Gallanter, Marc, Competing Equalities: Law and the Backward Classes in India, California: University of
California Press, 1984, p. 562
10
Chandola, Varn, Affirmative Action in India and the United States: the Untouchable and Black Experience, 3
Ind. Int'l & Comp. L. Rev. 101 1992-1993

4|Page
India, like the United States, has a federal government in which power is shared between the
central government and the states. The prohibition against discrimination by the "state"
implies that both the federal and state governments are bound by Article 14.11

11
Basu, Durga Das, Shorter Constitution Of India , (14th edn., 2009), p.12

5|Page
 AFFIRMATIVE ACTION IN INDIA
India is the world’s largest multi-ethnic society—and the most socially fragmented. A land of
well over a hundred languages and hundreds of dialects, where even the most widely spoken
language in the country is spoken by less than one-third of the population, India is also cross
cut by strong caste, religious, regional and ethnic divisions—expressed in a wide range of
ways, from radically different lifestyles to bloodshed in the streets. India has also had
affirmative action policies longer than any other nation, beginning in British colonial times,
and then provided for in its constitution when it became an independent country in 1947.12

There are basically two kinds of preferential policies in India—policies for national
minorities deemed less fortunate and policies for various local groups in their respective
states.13 The minority policies were quite explicitly designed primarily to deal with the severe
social disabilities and discrimination faced by India’s untouchables. Tribal groups outside the
social mainstream of the country were also included, as in some ways analogous to
untouchables. For others who might have similar disadvantages, an omnibus category of
‘other backward classes’ was included in the constitutional exemption from equal treatment
provisions. This last mentioned category provided an opening through which numerous other
groups could acquire preferential access to jobs and other benefits. These policies were
originally set to expire in 20 years, but they have been extended again and again.14

MARCH OF LAW

Starting our journey from the old yet not so in our conscience, Champakaran Dorairanjan
and ending it with the resplendent breeze of Ashok Kumar Thakur, below would be illustrated
by the authors the evolution of the affirmative policy in India.

 State of Madras v. Smt. Champakam Dorairanjan15: In this case the Hon'ble Supreme
Court of India held that caste based reservations as per Communal Award violates
Article 15(1). Yet, First constitutional amendment as to Art. 15 (4) was brought

12
Lelah Dushkin, ‘Backward Class Benefits and Social Class in India, 1920–1970’ Economic and Political
Weekly, April 7, 1979, p. 661
13
Sowell, Thomas, Affirmative Action Around the World: An empirical study, London:
Yale University Press, 2004, p.25
14
Kanti Bajpai, ‘Diversity, Democracy, and Devolution in India,Government Policies and Ethnic Relations in
Asia and the Pacific, edited by Michael E. Brown and Sumit Ganguly (Cambridge, Massachusetts: MIT Press,
1997), pp. 53
15
. State of Madras v. Smt. Champakam Dorairanjan AIR 1951 SC 226

6|Page
 forward. In consequence of this Amendment, the ruling of Supreme Court was made
invalid.

 General Manager, S. Rly v. Rangachari16: In this case, the majority decision of the
Supreme Court held that the power of reservation which is conferred on the State
under Article 16(4) can be exercised by the State in a proper case not only by
providing for reservation of appointments, but also by providing for reservation of
selection posts.

 M R Balaji v State of Mysore17: The Supreme Court put a 50% limit on reservations in
this ruling. It was also held that the backwardness under Article 15 (4) must be social
and educational. The Hon'ble Gajendragadkar. J observed on page 454 that "economic
backwardness might have contributed to social backwardness. " The classification of
‘backward and more backward’ was also made in this case.

 Chitralekha Vs State of Mysore18: In this case the order of Government making a

classification of socially and educationally backward classes based on economic
condition only was held to be justified.

 Miss Laila Chacko Vs State of Kerala19: It was held by the Supreme Court that while
accepting the means cum caste test for classification of backward classes several
factors have to be taken into consideration. The classification on the basis of the test
of income was rejected.

 Chamaraja v State of Mysore20: It was observed in this case that ''the guarantee given
under Article 29(2) of the Constitution is a guarantee given to individual citizens. That
guarantee is not given to any class. Article 15(4) of the Constitution empowers the
State to make special provisions for the advancement of any socially and
educationally Backward Class of citizens or for the Schedule Castes and Schedule
Tribes. That Article does not compel the State Government to make any special
provision for the advancement of the Classes, Castes, tribes mentioned therein. The
State is empowered to make provisions in that regard but it is not compelled to do so.
16
General Manager, S. Rly v. Rangachari AIR 1962 SC 362
17
M R Balaji v. State of Mysore AIR 1963 SC 649
18
Chitralekha Vs State of Mysore, AIR 1964 SC 1823
19
Miss Laila Chacko Vs State of Kerala, AIR 1967 Kerala 124
20
Chamaraja v State of Mysore AIR 1967 Mys 21

7|Page
  State of Jammu and Kashmir v. Triloki Nath Khosa21: In this case it was held that
classification on the basis of caste is not permissible. Justice Krishna Iyer stated that
the soul of Article 16 is the promotion of the common man's capabilities, over-
powering environmental adversities and opening up full opportunities to develop in
official life without succumbing to the sophistic argument of the elite that talent is the
privilege of the few and they must rule, wriggling out of the democratic imperative of
arts. 14 and 16 by the theory of classified equality which at its worst degenerates into
class domination.

 State of Kerala v N M Thomas22: In this case a lower division servant complained that
a rule issued by State of Kerala violated his equal opportunity clause under Article 16.
On the question that whether Article 16(4) is subject to any safeguard, the Supreme
Court pointed out that it must be read with Article 335 which directs that the State
should bear in mind that the claim of Scheduled Caste and Scheduled Tribes should be
consistent with them maintenance of efficiency of administration. Justice Krishna Iyer
stated that:

 “Backward Class is not a synonym of Backward Caste”

 K. C. Vasant Kumar v. State of Karnataka23: In this case there was a bench of 5 judges
and all judges gave different opinions. In this ruling, the Court opines that the test of
economic backwardness was the only criterion that can be realistically devised to
determine social and educational backwardness. The Hon'ble Chief Justice
Chandrachud stated that '' in regard to Schedule castes and Schedule Tribes (SCs &
STs), the existing reservations should be continued without the application of means
test up to the year 2000. The Hon'ble Chinnappa Reddy, J pointed out that the social
investigator may freely perceive those pursuing certain 'lowly' occupation as socially
and educationally backward classes.

 Indra Sawhney & Ors v. Union of India24 (Indra Sawhney I): The question that who is
the other backward classes came up for consideration again in this case. It was held
that in the reservation for the backward classes the creamy layer should be excluded.

21
State of Jammu and Kashmir v. Triloki Nath Khosa 1974 SCR (1) 771
22
State of Kerala v. N M Thomas AIR 1976 SC 4902
23
K. C. Vasant Kumar v. State of Karnataka AIR 1985 SC 1495
24
Indra Sawhney & Ors v. Union of India AIR 1993 SC 477

8|Page
 It was held that ‘reservation of appointments or posts under Article 16(4) included
promotions.’ But subsequently 77th Constitutional Amendment was introduced to
make this part of the judgment invalid. The judgment in M. R. Balaji was reiterated.

 TMA Pai Foundation v State of Karnataka25: In this case the Supreme Court held that
the ‘creamy layer’ i.e. the elite amongst the backward will not be provided
reservation. Further the law regarding reservation to be less than 50% continued. The
Supreme Court also laid down many regulatory measures but this measures were not
properly understood and interpreted which created more confusions.

 Islamic Academy of Education v. State of Karnataka26: Instead of clarifying the

judgment in TMA Pai Foundation case, the Supreme Court in this case gave its own
judicial opinion.

 P A Inamdar v. State of Maharashtra27: The ink of TMA Pai had not died yet and
there was a floodgate of litigation in the country. In this case, the Supreme Court
held that reservations cannot be enforced on Private Unaided educational institutions.
In view of this, the 93rd constitutional amendment was made which introduced Art
15(5) and Tamil Nadu Government Act was placed in the 9th schedule.

 Ashok Kumar Thakur v. Union of India28: In this case there was a challenge by the
petitioner to the policy of 27% reservation for the Other Backward Classes (OBCs)
contained in the Central Educational Institutions Reservation in Admission Act 2006
(the Act). The Act was challenged on the grounds that the Union of India has failed in
performing the constitutional and legal duties toward the citizenry and that the Act
would have wide ramifications and ultimately results in dividing the country on a
caste basis.

 Justice R V Raveendran stated that “Caste has divided this country for ages. It has
hampered its growth. To have a casteless society will be realization of a noble dream.
To start with, the effect of reservation may appear to perpetuate caste. The immediate
effect of caste based reservation has been rather unfortunate. In the pre-reservation

25
TMA Pai Foundation v State of Karnataka 1994 (2) SCC 195
26
Islamic Academy of Education v. State of Karnataka 2003 (6) SCC 697
27
P A Inamdar v State of Maharashtra AIR 2005 SC 3226
28
Ashok Kumar Thakur v. Union of India 2008 (6) SCC 1

9|Page
 era people wanted to get rid of the backward tag -- either social or economical. But
post reservation, there is a tendency even among those who are considered as
'forward', to seek 'backward' tag, in the hope of enjoying the benefits of reservations.
When more and more people aspire for 'backwardness' instead of 'forwardness' the
country itself stagnates. Be that as it may. Reservation as an affirmative action is
required only for a limited period to bring forward the socially and educationally
backward classes by giving them a gentle supportive push. But if there is no review
after a reasonable period and if reservation is continued, the country will become a
caste divided society permanently. Instead of developing an united society with
diversity, we will end up as a fractured society for ever suspicious of each other. While
affirmative discrimination is a road to equality, care should be taken that the road
does not become a rut in which the vehicle of progress gets entrenched and stuck. Any
provision for reservation is a temporary crutch. Such crutch by unnecessary
prolonged use should not become a permanent liability. It is significant that
Constitution does not specifically prescribe a casteless society nor tries to abolish
caste but by barring discrimination in the name of caste and by providing for
affirmative caste when the differences in status among castes are removed, all castes
will become equal. That will be a beginning for a casteless egalitarian society.”

 M. Nagraj & Ors v. Union of India and Ors:29 This case dealt with the 77th
Constitutional amendment, introducing Articles 16(4 A) and (16 4B). This amendment
was introduced to make the judgment of Indra Sawhney's case invalid where it was
held that ‘reservation of appointments or posts under Article 16(4) included
promotions.’ The Supreme Court in this case held the Constitutional Amendment as a
valid amendment and held that it is the duty of the State not only to protect human
dignity but facilitate it by taking positive steps in that direction. The decision of Ashok
Kumar Thakur case was reiterated in this case. The case laid down 3 factors for
reservation in public employment:

1. Backwardness in state
2. Overall inefficiency in administration of state
3. Inadequacy in representation in services

29
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71

10 | P a g e
 AFFIRMATIVE ACTION IN THE UNITED STATES OF AMERICA
Jones30 defines affirmative action in the US as “public or private actions or programmes
which provide, or seek to provide, opportunities or other benefits to persons on the basis of,
among other things, their membership in a specified group or groups”. Affirmative action in
the US can be further defined as the “setting of goals and the writing of policies which should
create equality and social balances in the workplace”.31 Synonyms used to define or describe
affirmative action includes; “positive action”51, “reverse discrimination”, “affirmative
discrimination”, or “quotas”.

Some legal luminaries in the US have even characterized affirmative action as a policy
“designed to right the wrongs of the past” as a quota system or as a set of remedial
programmes aimed to compensate for the inadequacies of people of colour or of women.

The American Declaration of Independence in 1776 asserted that: ‘We hold these truths to be
self-evident: that all men are created equal …’32

These words would seem to ‘embrace the whole human family. However, as the US
Supreme Court asserted in the infamous case of Dred Scott33 in 1857: ‘

It is too clear for dispute, that the enslaved African race were not intended to be included ...
The unhappy black race were separated from the white by indelible marks, and laws long
before established, and were never thought of or spoken of except as property.

Moreover, the Court held:

‘the right of property in a slave is distinctly and expressly affirmed in the Constitution. This
is done in plain words — too plain to be misunderstood.’ The intention of the original
framers of the Constitution was paramount: ‘No one, we presume, supposes that any change
in public opinion or feeling,. should induce the court to give to the words of the Constitution
a more liberal construction in their favour than they were intended to bear when the
instrument was framed and adopted.... If any of its provisions are deemed unjust, there is a
mode prescribed in the instrument itself by which it may be amended; but while it remains
unaltered, it must be construed now as it was understood at the time of its adoption.’
30
Jones, James E. Jr., Origins of Affirmative Action, 21 U.C. Davis L. Rev. 383 (1987-1988)
31
Ross J J Equal Employment Opportunities Compliance (1973) at 35-37
32
Jefferson, Thomas, The Unanimous Declaration of the Thirteen United States of America, The United States
Declaration of Independence, 1776
33
Dred Scott v Sandford 60 US 393 (1857) (US Supreme Court) at 411

11 | P a g e
Thus the Act of Congress prohibiting slave-owning in the Northern States was held to be
unwarranted by the Constitution and void, and slaves remained the property of their owner
even if they were taken to Northern States which had abolished slavery.

According to the Fourteenth Amendment though, all persons born or naturalised in the US
are American citizens and citizens of their state of residence.34 The citizenship of African
Americans was thereby established and the effect of the Dred Scott case35 was overcome.

Despite the abolition of slavery and the constitutional guarantee of equality, blatant
discrimination remained endemic throughout the US. African Americans were not permitted
to vote in many states, and they were consigned to separate and vastly inferior facilities. Nor
was the Equal Protection Clause in the Fourteenth Amendment sufficiently robust to combat
such inequality. In Plessy v Ferguson36 the Court refused to strike down a Louisiana statute,
passed in 1890, providing for separate railway carriages for the ‘white and colored races.’
The Court held that although the object of the Fourteenth Amendment ‘was undoubtedly to
enforce the absolute equality of the two races before the law, ... it could not have been
intended to abolish distinctions based upon color, or to enforce social, as distinguished from
political equality.

The Court’s assumption that enforced separation did not ‘stamp the colored race with a badge
of inferiority’ was forcefully rebutted by Harlan J. In a stinging dissent, he argued: ‘Everyone
knows that the statute in question had its origin in the purpose, not so much to exclude white
persons from railroad cars occupied by blacks, as to exclude colored people from coaches
occupied by or assigned to white persons.... No one would be so wanting in candour as to
assert the contrary.’ It was not until well into the 20th century that the majority of the Court
began to echo the lone voice of Harlan J that ‘such legislation, as that here in question, is
inconsistent not only with that equality of rights which pertains to citizenship, National and
State, but with the personal liberty enjoyed by everyone within the United States.’

Thus, in a seminal case concerning internship of Japanese citizens during the Second World
War, the Court held37:

34
Section 1, Fourteenth Amendment to the United States Constitution, 1868
35
Supra at 16
36
Plessy v Ferguson 163 US 537 (1896) (US Supreme Court).
37
Korematsu v United States 323 US 214, 65 S Ct 193 (1944)

12 | P a g e
Legal restrictions which curtail the civil rights of a single racial group are immediately
suspect … Courts must subject them to the most rigid scrutiny.

Although this in principle leaves open the possibility of justification of a racial classification,
in practice the strict scrutiny test has almost invariably led to the Court striking down racial
classifications operating to the detriment of Afro-Americans.38 In the famous case of Brown v
Board of Education39 in 1954, the US Supreme Court decisively rejected the ‘separate but
equal’ doctrine. In a surprisingly brief but unequivocal judgment, the Court held that

‘in the field of public education the doctrine of “separate but equal” has no place. Separate
educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by
reason of the segregation complained of, deprived of the equal protection of the laws
guaranteed by the Fourteenth Amendment.

This opened the door to a series of cases in which segregated hospitals, libraries, parks,
public transit systems and other publicly owned facilities were held to be unconstitutional.40

38
McLaughlin v Florida 379 US 184, 85 S Ct 283 (1964); Loving v Virginia 388 US 1, 87 S Ct 1817 (1967)
39
Brown v Board of Education 347 US 483 (1954) (US Supreme Court), 494
40
D.B. Oppenheimer ‘Sources of US Equality Law’, Anti-discrimination Law Review, 10 (2010), 20

13 | P a g e
 BENEFICIARIES OF AFFIRMATIVE ACTION
Affirmative action is intended to uplift nad provide opportunities to the undeveloped and
inferior sections of the society in order for them to be given the ladder to attain opportunities
equal to that of the privileged majority population.

It is often instituted in government and educational settings to ensure that certain designated
"minority groups" within a society are included "in all programs. The stated justification for
affirmative action by its proponents is that it helps to compensate for past discrimination,
persecution or exploitation by the ruling class of a culture41 and to address existing
discrimination.42 The implementation of affirmative action, especially in the United States, is
considered by its proponents to be justified by disparate impact.

BENEFICIARIES OF AFFIRMATIVE ACTION IN INDIA

India appears to be unique among the countries of the world in the degree to which its
affirmative action programs have wrestled with the problem of selecting beneficiary groups.
The constitutional provisions authorizing affirmative action identify three general categories:

(a) Scheduled Castes (descendants of the former `untouchables'),

(b) Scheduled Tribes (ethnic groups generally living in remote and hilly regions), and

(c) Other `socially and educationally backward classes of citizens.43

The greatest difficulty and controversy has focused on selection of groups for this third
category, generally termed the OBCs (Other Backward Classes). In the first three decades
after adoption of the Indian constitution, selection of groups for OBC designation was left
largely to state governments within India's federal system of government. As a result, the
Indian Supreme Court repeatedly struck down plans that seemed primarily to benefit
politically powerful groups, or that were based on traditional assumptions of caste-based
41
Sowell, Thomas Affirmative Action Around the World: An Empirical Study, Yale University Press, 2004, p.
56
42
Fullinwider, Robert, "Affirmative Action", The Stanford Encyclopedia of Philosophy (Fall 2013 Edition),
Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2013/entries/affirmative-action/>.
43
Cunningham, C.D., Affirmative Action: Comparative Policies and Controversies, International
Encyclopaedia of the Social and Behavioural Sciences, Georgia State University of Law, 2002

14 | P a g e
prejudice without knowing which groups were truly in greatest need. The object of articles
341(1) and 342(1)142 of the Constitution is to provide additional protection to members of
the SC’s and the ST’s having regard to the economic and educational backwardness from
which they suffer.44

Attention has focussed on protective discrimination or preferential treatment for three major
classes; the SC’s,45 the ST’s,46 and more recently there are the OBC’s. Also included among
OBC’s are a few tribal and nomadic groups, as well as converts to non-Hindu religions from
the scheduled caste, and in some areas the Denotified Tribes. The OBC’s category extends
the principle of affirmative action in education and government employment from the case of
the untouchables to “socially and educationally backward classes of citizens”.47

Although, for historical reasons, affirmative action in India is phrased largely in terms of
assisting “backward” groups, “backwardness” or the “depressed classes”, it should be
understood as a comparative rather than a pejorative or patronising term.48

Another group that receives preferential treatment in India are women and children. Under
clause (3) of Article 15 of the Indian Constitution, special provision for the benefit of women
and children may be made by the State and such special provision will not be open to attack
as contravening Articles 14 or 15.49 Article 15 empowers that state to make special provisions
for the protection of women and children. This is affirmative action; this is compulsory
justice; this is protective discrimination.50

BENEFICIARIES OF AFFIRMATIVE ACTION IN THE UNITES STATES OF AMERICA

The original reasoning behind affirmative action in the US was conceived as a means to
compensate African Americans for centuries of slavery, as newly granted legal equality was
considered insufficient to redress African American grievances. However, even though the
original incentive for affirmative action in the USA was the advancement of African
Americans only, the initiative quickly expanded to encompass various other racial minorities
that had never suffered from slavery but were the victims of other forms of discrimination.

44
Bhaiya Lal v Harikishan Singh (1965) AIR 1557 (SC)
45
Art. 366(24), The Constitution of India Act, 1950
46
Art. 366(25), The Constitution of India Act, 1950
47
Article 15(4), The Constitution of India Act, 1950
48
Supra Note 26
49
Padmaraj Samendra v State of Bihar (1979) AIR Pat 266
50
Bhatia, K.L., Textbook on legal language and legal writing, New Delhi: Universal Law Publishing Company,
2010

15 | P a g e
The groups now protected by a series of federal legislation include American Indians or
Native Americans, Hispanics and Asians. In addition, newly immigrated Africans without
any enslaved ancestors are entitled to benefit as well. Women were later included as
candidates for affirmative action programmes as a result of the women’s liberation
movement.51

Later persons with disabilities, the Vietnam-era veterans, and special disabled veterans were
included to be beneficiaries of affirmative action measures. Therefore, affirmative action
regulations now cover minority persons, women, persons with disabilities, Vietnam-era
veterans, and special disabled veterans. Although it is well known which ethnic groups and
races are preferred or “protected” by the Government, almost no list or enumeration is made
in writing, presumably because of a fear that such a list would be held unconstitutional as a
form of invidious discrimination against groups not on the list.

However, the definitions of targeted minority groups used by the federal government may be
defined as the following —

 America Indian or Alaskan Native — Persons having origins in any of the original
people of North America, and who maintain cultural identification through tribal
affiliations or community recognition.
 Asian or Pacific Islander — Persons having origins in any of the original peoples of
the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area
includes, for example, China, Japan, Korea, the Philippine Islands, and Samoa.
 Black, not of Hispanic Origin — Persons having origins in any of the black racial
groups of Africa.
 Hispanic — Persons of Mexican, Puerto Rican, Cuban, central or South American or
other Spanish Culture or origin, regardless of race52

Further, employers on or near Indian reservations are permitted by Title VII of the CRA 53 to
give preferential treatment to Indians living on or near that reservation, with respect to any
publicly announced employment practice. This preference, allowing preferential treatment to
be given to an individual because he is an Indian living on or near a reservation, does not

51
Beach D S Personnel — The management of people at work, (1991) 5ed New York: Macmillan, p 53.
52
Holloway A Frances, Blanchard F A & Crosby F J, Affirmative action in Perspective (1989) 9-19 , p.10
53
Civil Rights Act, 1974

16 | P a g e
allow discrimination based on tribal affiliation54, although at least one circuit has held that
tribal membership requirements may apply.55

Unlike SA where it is the majority of the population, i.e., the Africans who are the primary
beneficiaries of affirmative action measures, in the US affirmative action is specifically
targeted at minority groups. There is a grey area in law about whether or not affirmative
action is meant to benefit non-citizens of America. According to the Fourteenth Amendment
all persons born or naturalised in the US are American citizens and citizens of their state of
residence56. The citizenship of African Americans was thereby established and the effect of
the Dred Scott57 case was overcome. The section forbids the states to abridge the privileges
and immunities of US citizens, to deprive any person of life, liberty, or property without due
process of law and to deny any person the equal protection of the laws.

Section 1 of the Fourteenth Amendment has been used extensively by the US SC to test the
validity of state legislation. The privileges and immunities of citizenship have never been
defined by a majority of the court, but some justices have argued that among the activities
envisaged are freedom to cross state boundaries and freedom to gather for the discussion of
legislation in a peaceful manner. The court has preferred to base its decisions on the due
process and the equal protection clauses, which apply to all persons irrespective of
citizenship. However, a number of different laws cover employees who immigrate to the US
from another country. Title VII and other anti-discrimination statutes protect all employees
regardless of their citizenship or work status. This means that regardless of whether a person
is a US citizen or not, an employer may not discriminate on the basis of their race, colour,
national origin, sex, religion, disability or age. Citizenship requirements intended to
discriminate on the basis of national origin are usually illegal.

54
Dawavendewa v Salt River Project Agr. Imp. and Power Dist. (2000) 154 F.3d 1117 (9th Cir.)
55
Mullenburg v US (1988) 857 F.2d 770 (Fed. Cir.)
56
Section 1, Fourteenth amendment to the United States Constitution, 1868
57
Supra note at 16

17 | P a g e
 CONCEPT OF EQUALITY IN THE TWO NATIONS

NOTION EQUALITY IN INDIA

The Constitution of India has given the concept of equality58 as “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 exceptional clause59 to equality that provides affirmative action is iterated as,
“Nothing in this article or in clause (2) of article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.” It is also substantiated in the
Constitution through the elaboration of Directive Principles of State policy60.

NOTIONAL EQUALITY IN THE UNITED STATES

"We hold these truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights that among these are Life, Liberty and the
pursuit of Happiness."61

Voltaire62 observed that equality must have been part of the State of Nature, yet it was
something that men give up when they enter human society. Montesquieu agreed, but
stressed the fact that since only a very limited degree of equality was possible in human
society, men are left to ponder how they may reduce the inequalities.

Sanford Lakoff63 has pointed out in his definitive study of equality in political theory that
"the philosophical champions of enlightenment in the eighteenth century were for the most
part less anxious to propose equality than to denounce extreme inequalities.

58
Art. 14, The Constitution of India Act, 1950
59
Art. 15, The Constitution of India Act, 1950
60
Art. 46, The Constitution of India Act, 1950
61
Jefferson, Thomas, Declaration of Independence, July 4, 1776
62
Sidney Verba and Gary R. Orren, Political Science Quarterly Vol. 100, No. 3 (Autumn, 1985), p. 369
63
Sanford A. Lakoff, Equality in Political Philosophy (Cambridge, 1964), p. 89

18 | P a g e
 CROSS CULTURAL INFLUENCES IN RELATION TO AFFIRMATIVE ACTION
In the past, cultural exchanges between the United States and India have occurred.

For example, the great nineteenth century American philosopher, Henry David Thoreau, was
influenced by Hindu philosophy.64 In return, Thoreau's famous book, Civil Disobedience,
provided Gandhi with key insights on creating his own strategy of civil disobedience against
the British in India.

Subsequently, Dr. Martin Luther King, Jr., derived inspiration and guidance from Gandhi's
philosophy in leading the civil disobedience campaign in the United States. The U.S. and
Indian affirmative action systems are both domestic products; yet the evolution of the
affirmative action system in each country has not been completely isolated from the other.
For instance, Indian legal scholars and judges have been well aware of the origin and
development of affirmative action in the United States.65

Many of the principles underlying the U.S. Constitution have been incorporated into the
Indian Constitution.66 American constitutional law has influenced not only Indian
constitutional law in general, but also Indian affirmative action law in particular.
Interestingly, Indian influences67 on the development of affirmative action in the United
States can also be detected. These subtle Indian influences will be explored in detail. In
comparison, the American influences in relation to Indian affirmative action are well
documented by both American and Indian legal scholars.68

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. 69
Article 14 states that "The State shall not deny to any person . . . the equal protection of the

64
Supra note 10; Also, Chester Bowles, What We Can Learn From Gandhi, In Profiles Of Gandhi (Norman
Cousins ed., 1969)., p. 193
65
Parmanand Singh, Equality, Reservation and Discrimination in India, (New Delhi, Deep and Deep
Publications, 1985), p. 80
66
Charles, Robert B., Special Project, American Influence on the Indian Constitution: Focus on the Equal
Protection of the Laws, 17 Colum. Hum. Rts. L. Rev. 193, 193 (1985/86).
67
Basu, D.D., Comparative Constitutional Law, Edited by Banerjee, J and Gandhi B.M., 2nd edn., Nagpur:
Wadhwa and Wadhw, 2008, p. 49
68
George H. Gadbois, Affirmative Action in India: The Judiciary and Social Change, 8 Law & Policy 329, 330
(1986).
69
Alan M. Katz, Benign Preferences: An Indian Decision and the Bakke Case, 25 AM. J. COMP. L. 611, p. 32

19 | P a g e
laws.''70 Unlike the Fourteenth Amendment which lends questionable support to affirmative
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.71 Article 14 analysis has employed the "rational basis test," as used in equal
protection analysis under the Fourteenth Amendment.72

In both countries, the rational basis test provides a method of evaluating the constitutional
validity of legislation.73 This 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.'74

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. 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.

The author believes that 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,75 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

70
The portion "equality before the law" is a British concept. The Equal Protection Clause is given greater
importance in construing the meaning of Article 14.
71
Supra note 11
72
Supra Note 35, p.23
73
Nowak, John, Hornbook on Constitutional Law, 8th edn.,West publishers, 2009, p. 574
74
Supra note 37, p.194
75
Stephen L. Wasby, "Compensatory Discrimination" and American "Affirmative Action": Some Parallels - A
Review of Galanter's Competing Equalities, 8 LAW & POL'Y 379, 380 (1986).

20 | P a g e
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 Columbia76, was inspired by such legal constructs as the Fourteenth
Amendment which had guaranteed blacks greater freedoms. Ambedkar's revolution77 for the
emancipation of untouchables was significantly influenced by American ideals of equality.

INDIAN INFLUENCES ON THE AMERICAN CASTE SYSTEM AND AFFIRMATIVE ACTION

A logical place to look for the possibility of Indian influence would be in the creation of
affirmative action in the United States. Despite the fact that India started affirmative action
before the United States, there is no proof that the United States was in any way influenced
by India's affirmative action philosophy. Yet it needs to be taken into consideration that
former Mayor Ed Koch of New York City78 felt that quotas in the United States were an
imitation of India's system of preferential treatment.

Some Indian influence may be found in the introduction of caste terminology into the United
States in both social and legal contexts.

For instance, the term "Boston Brahmin"79 was used in the United States in the early part of
the nineteenth century. This term was often used to describe the "cultured" individuals of
New England, such as Harvard intellectuals. Henry David Thoreau, along with other mid-
nineteenth century philosophers in the Boston area, such as Emerson and Alcott, were
literally "Brahmins" in behaviour.80

In more recent times, we have seen social scientists and legal scholars using descriptions such
as "racial caste system, colour caste system, sexual caste system81, caste system,82 caste83 and

76
Dr. Ambedkar, who collected a remarkable number of degrees and honors, studied at Columbia University in
1916 and also attended colleges in India and Great Britain.
77
A Post-Ambedkar movement named the "Dalit Panthers" sprang up India which was patterned after the Black
Panther movement among the blacks in the United States.
78
Weiner, Myron and Mary F. Katzenstein., India's Preferential Policies in Comparative Perspective, 1981,
Chicago: University of Chicago Press, p.136
79
A Dictionary Of Americanisms: On Historical Principles ,1938, p. 302
80
Umesh Patri, Hindu Scriptures And American Transcendentalists, (1987), p. 12
81
Jo Freeman, Legal Basis of the Sexual Caste System, 5 VAL. U. L. REV.203 (1971).
82
United States v. Yazell, 382 U.S. 341 (1966).
83
Sales v. U.S. 258 F. 597 (1919).

21 | P a g e
many other related terms to describe the status of blacks and other groups in the United
States. The term "caste legislation"84 has been used to describe discriminatory statutes.
Justice Marshall's dissent in Kadrmas v. Dickinson Public Schools85 maintained that "the
intent of the Fourteenth Amendment was to abolish caste legislation.'

Through the preliminary research, the authors unravelled that in the early part of the
nineteenth century, Herbert Risley, a prominent anthropologist, vividly described the
similarities in status of untouchables and black slaves in the United States. Such comparisons,
which have generated a great deal of controversy, continue to the present time. Gerald
Berreman86, a well-known anthropologist from the University of California at Berkeley,
argues that "caste" may be given a cross-cultural definition to encompass discrimination
against blacks in the United States. At the same time, "caste" may be given such a narrow
definition as to be applicable only to Hinduism. No matter how one defines caste, it is evident
that blacks and untouchables experience similar forms of discrimination.

In Plessey v Ferguson87, Harlan J’s dissenting opinion had the following words:

In the view of the Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our Constitution is colour-blind…

Yet he contradicted his own observation that “there is no caste here" in the same opinion,
when he observed just prior to the quoted excerpt that:

The white race deems itself to be the dominant race in this country. And so it is, in prestige,
in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be
for all time ...

Justice Harlan's view of white supremacy was no different than an orthodox Brahmin's. sense
of superiority over untouchables. In this regard, Justice Harlan's views of race relations was
highly caste-oriented. Moreover, even if Justice Harlan had been whole-heartedly opposed to
a caste system, his opinion stood alone as the sole dissent. The majority did not agree with
Justice Harlan's basis for giving equal treatment to blacks.

84
Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988)
85
Ibid
86
Gerald Berreman, University of California at Berkeley
87
163 U.S. 537 (1896).

22 | P a g e
India's most important influence on the United States in socio-legal terms lies in Gandhi's
contribution to the black Civil Right Movement of the 1960s.

While Gandhi was a leading advocate of the untouchable movement for equality, 136 he also
greatly influenced many black civil rights leaders. Dr. Martin Luther King, Jr., openly
acknowledged borrowing Gandhi's civil disobedience strategy in his civil rights campaigns. 88
While most scholars of the Civil Rights movement are well aware of Gandhi's influence on
King, Gandhian influence on the black rights movement took place a generation before
King's arrival. In the mid-1930's, influential black leaders visited Gandhi, who was in the
process of waging India's civil disobedience campaign against the British.

For example, leading black spokespersons, such as Channing Tobias and Benjamin Mays
(who would eventually give King's eulogy), visited Gandhi in India in 1937 to discuss the
status of black Americans.89

India differs from the US, South Africa and Canada in that ‘caste-based reservations in
public employment and education have been India’s primary vehicle for fulfilling its
constitutional promise of an egalitarian society.90

88
Martin Luther King, Jr., Pilgrimage To Nonviolence, in Profiles Of Gandhi (Norman Cousins ed., 1969).p.
206
89
Homer Jack, Gandhi and Martin Luther King, in Profiles Of Gandhi (Norman Cousins ed., 1969).p. 219.
90
Khaitan, T, ‘Transcending Reservations: A Paradigm Shift in the Debate on Equality’, Economic and
Political Weekly 20/8 (2008)

23 | P a g e
 PLAUSIBLE PROSPECTS OF FURTHER NEXUS ON AFFIRMATIVE ACTION
POLICIES BETWEEN THE TWO NATIONS
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.91 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 a question of immense importance. The Indian legal spectrum, 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. 92
On the other hand, 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 gain from relying on the American judicial encounter with the
implementation of affirmative action laws and programs. 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.'93

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
91
Wood, John, Reservations in Doubt: The Backlash Against Affirmative Action in Gujarat, India, 60 PAC.
AFF. 408 (1987).
92
Lester, Anthony, The American Constitution: Home Thoughts from Abroad, 49 U. Prrr. L. REV. 769, 771
(1988).
93
Supra note 36

24 | P a g e
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 categorizing of the OBC. The selection process by which
groups are categorized under the OBC is highly politicized. Abuses in the selection process
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.

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. 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
may serve as a simulation study for the United States. The United States will increasingly

25 | P a g e
become a more culturally diverse society as the minority population continues to grow at a
much faster rate than the Anglo population.

The 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.94

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.

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. 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. 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.

The segment of society liable to 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 great implications

94
Supra 60

26 | P a g e
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 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.

27 | P a g e
CONCLUSION

28 | P a g e
 BIBLIOGRAPHY

CASES

Ashok Kumar Thakur v. Union of India 2008 (6) SCC 1 ........................................................ 10

Bhaiya Lal v Harikishan Singh (1965) AIR 1557 (SC)........................................................... 16

Chamaraja v State of Mysore AIR 1967 Mys 21 ...................................................................... 8

Chitralekha Vs State of Mysore, AIR 1964 SC 1823................................................................. 8

Dred Scott v Sandford 60 US 393 (1857) (US Supreme Court) .............................................. 12

General Manager, S. Rly v. Rangachari AIR 1962 SC 36 ........................................................ 8

Indra Sawhney & Ors v. Union of India AIR 1993 SC 477 ...................................................... 9

Islamic Academy of Education v. State of Karnataka 2003 (6) SCC 697 ............................... 10

K. C. Vasant Kumar v. State of Karnataka AIR 1985 SC 1495 ................................................ 9

Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988 ................................................... 23

Korematsu v United States 323 US 214, 65 S Ct 193 (1944) .................................................. 13

Loving v Virginia 388 US 1, 87 S Ct 1817 (1967 .................................................................... 14

M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71............................................... 11

McLaughlin v Florida 379 US 184, 85 S Ct 283 (1964) ......................................................... 14

Miss Laila Chacko Vs State of Kerala, AIR 1967 Kerala 124................................................... 8

P A Inamdar v State of Maharashtra AIR 2005 SC 3226 ....................................................... 10

Padmaraj Samendra v State of Bihar (1979) AIR Pat 266 ..................................................... 16

Plessy v Ferguson 163 US 537 (1896) .................................................................................... 13

Sales v. U.S. 258 F. 597 (1919) ............................................................................................... 22

Saurabh Chaudri v Union of India, AIR 2004 SC 361 ............................................................. 5

State of Jammu and Kashmir v. Triloki Nath Khosa 1974 SCR (1) 771 ................................... 9

State of Kerala v. N M Thomas AIR 1976 SC 490 .................................................................... 9

State of Madras v. Smt. Champakam Dorairanjan AIR 1951 SC 226 ...................................... 7

TMA Pai Foundation v State of Karnataka 1994 (2) SCC 195 ............................................... 10

29 | P a g e
United States v. Yazell, 382 U.S. 341 (1966) .......................................................................... 22

TREATISES

A Dictionary Of Americanisms: On Historical Principles ,1938 ............................................ 22

Basu, D.D., Comparative Constitutional Law, Edited by Banerjee, J and Gandhi B.M., 2nd
edn., Nagpur: Wadhwa and Wadhw, 2008 .......................................................................... 20

Basu, Durga Das, Shorter Constitution Of India , (14th edn., 2009), ......................................... 6

Beach D S Personnel — The management of people at work, (1991) 5ed New York:
Macmillan, ........................................................................................................................... 17

Bederman, David, International Law Framework, California: West Academic Publishers:

Foundation Press, 2011 .......................................................................................................... 4

Bhatia, K.L., Textbook on legal language and legal writing, New Delhi: Universal Law
Publishing Company, 2010 .................................................................................................. 16

Chester Bowles, What We Can Learn From Gandhi, In Profiles Of Gandhi (Norman Cousins
ed., 1969)., p. 193 ................................................................................................................ 20

Cunningham, C.D., Affirmative Action: Comparative Policies and Controversies,

International Encyclopaedia of the Social and Behavioural Sciences, Georgia State
University of Law, 2002 ...................................................................................................... 15

Datar, Arvind P., Commentary on the Constitution of India, Vol. 1, Nagpur: Butterworths
Wadhwa, 2nd Edn., 2007......................................................................................................... 5

Gallanter, Marc, Competing Equalities: Law and the Backward Classes in India, California:
University of California Press, 1984 ...................................................................................... 5

Homer Jack, Gandhi and Martin Luther King, in Profiles Of Gandhi (Norman Cousins ed.,
1969) .................................................................................................................................... 24

Kanti Bajpai, ‘Diversity, Democracy, and Devolution in India,Government Policies and

Ethnic Relations in Asia and the Pacific, edited by Michael E. Brown and Sumit Ganguly
(Cambridge, Massachusetts: MIT Press, 1997) ..................................................................... 7

Laurence H. Tribe, American Constitutional Law, Vol. 1, 3rd Edn., 1978, California: West
Academic Publishers: Foundation Press ................................................................................ 4

30 | P a g e
Martin Luther King, Jr., Pilgrimage To Nonviolence, in Profiles Of Gandhi (Norman Cousins
ed., 1969) ............................................................................................................................. 24

Nowak, John, Hornbook on Constitutional Law, 8th edn.,West publishers, 2009 ................... 21

Parmanand Singh, Equality, Reservation and Discrimination in India, (New Delhi, Deep and
Deep Publications, 1985), .................................................................................................... 20

Ross J J Equal Employment Opportunities Compliance (1973) .............................................. 12

Sanford A. Lakoff, Equality in Political Philosophy (Cambridge, 1964)............................... 19

Sowell, Thomas, Affirmative Action Around the World: An empirical study, London:
Yale University Press ............................................................................................................. 7

Umesh Patri, Hindu Scriptures And American Transcendentalists, (1987) ............................ 22

CONSTITUTIONAL PROVISIONS

Art. 14, The Constitution of India Act, 1950 ........................................................................... 19

Art. 15, The Constitution of India Act, 1950 ........................................................................... 19

Art. 366(24), The Constitution of India Act, 1950 .................................................................. 16

Art. 366(25), The Constitution of India Act, 1950 .................................................................. 16

Art. 46, The Constitution of India Act, 1950 ........................................................................... 19

Article 15(4), The Constitution of India Act, 1950.................................................................. 16

RESEARCH PAPERS

Alan M. Katz, Benign Preferences: An Indian Decision and the Bakke Case, 25 AM. J.
COMP. L. 611 ...................................................................................................................... 20

C. Heyns & F. Viljoen, The Impact of the United Nations Human Rights Treaties on the
Domestic Level. (2001) 23 Human Rights Quarterly 483 ...................................................... 4

Charles, Robert B., Special Project, American Influence on the Indian Constitution: Focus on
the Equal Protection of the Laws, 17 Colum. Hum. Rts. L. Rev. 193, 193 (1985/86). ....... 20

D.B. Oppenheimer ‘Sources of US Equality Law’, Anti-discrimination Law Review, 10

(2010) ................................................................................................................................... 14

31 | P a g e
Foster, Jason Morgan, From Hutchins Hall To Hyderabad And Beyond: A Comparative At
Affirmative Action In Three Jurisdictions, Vol.9 Iss. 1, 9 Wash. & Lee Race & Ethnic Anc.
L. J. 73 (2003 ......................................................................................................................... 4

Fullinwider, Robert, "Affirmative Action", The Stanford Encyclopedia of

Philosophy (Fall 2013 Edition), Edward N. Zalta (ed.) ..................................................... 15

George H. Gadbois, Affirmative Action in India: The Judiciary and Social Change, 8 Law &
Policy 329, 330 (1986) ......................................................................................................... 20

Holloway A Frances, Blanchard F A & Crosby F J, Affirmative action in Perspective (1989

..............................................................................................................................................17

Jo Freeman, Legal Basis of the Sexual Caste System, 5 VAL. U. L. REV.203 (1971). .......... 22

Jones, James E. Jr., Origins of Affirmative Action, 21 U.C. Davis L. Rev. 383 (1987-1988).12

Khaitan, T, ‘Transcending Reservations: A Paradigm Shift in the Debate on Equality’,

Economic and Political Weekly 20/8 (2008) ....................................................................... 24

Lelah Dushkin, ‘Backward Class Benefits and Social Class in India, 1920–1970’ Economic
and Political Weekly, April 7, 1979....................................................................................... 7

Lester, Anthony, The American Constitution: Home Thoughts from Abroad, 49 U. Prrr. L.
REV. 769, 771 (1988) .......................................................................................................... 25

Sidney Verba and Gary R. Orren, Political Science Quarterly Vol. 100, No. 3 (Autumn,
1985), ................................................................................................................................... 19

Stephen L. Wasby, "Compensatory Discrimination" and American "Affirmative Action":

Some Parallels - A Review of Galanter's Competing Equalities, 8 LAW & POL'Y 379,
380 (1986) ............................................................................................................................ 21

Weiner, Myron and Mary F. Katzenstein., India's Preferential Policies in Comparative

Perspective, 1981, Chicago: University of Chicago Press, p.136........................................ 22

Wood, John, Reservations in Doubt: The Backlash Against Affirmative Action in Gujarat,
India, 60 PAC. AFF. 408 (1987) ......................................................................................... 25

OTHER AUTHORITIES

Jefferson, Thomas, The Unanimous Declaration of the Thirteen United States of America,
The United States Declaration of Independence, 1776 ........................................................ 12

32 | P a g e
Section 1, Fourteenth Amendment to the United States Constitution, 1868 ........................... 13

33 | P a g e