A Comparison of the Reservation System in India to Affirmative Action Policies in the United States
By: Simonne Kapadia
The debate over the efficacy and role of Affirmative Action in the United States is ongoing, as evidenced by the continuing challenge to Harvard’s admissions practices.[1] However, conversations related to Affirmative Action are not unique to the United States. In fact, Affirmative Action-like policies in India, known as the Reservation System, predated Affirmative Action in the United States and were enumerated in the 1950 Indian Constitution.[2] Conversely, Affirmative Action in the United States did not begin until 1961 when President John F. Kennedy signed Executive Order 10925, which required government contractors to take “affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”[3]
There are two key differences between Affirmative Action and the Reservation System. The first difference is that formal quotas are permissible in the Reservation System, but are not permitted under Affirmative Action.[4] The second difference is that Affirmative Action focuses on addressing racial disparities whereas the Reservation System focuses on addressing caste disparities.[5] The caste system is an ancient social stratification based in the Hindu religion.[6] However, an individual’s caste became exceedingly important under British colonization because the British used caste as a mechanism for societal control.[7] The Reservation System seeks to promote the well-being of three main groups of people – the Scheduled Castes, the Scheduled Tribes, and Other Backward Castes.[8] Scheduled Castes include the Dalit caste, a group previously known as the “untouchables,” who have faced high levels of discrimination.[9] The Scheduled Tribes include groups living in remote areas of India and Other Backward Castes includes a broader, less well-defined grouping of people.[10]
In the United States, the Supreme Court held in Regents of the University of California v. Bakke, that using quotas in university admissions is unconstitutional, but that race can be used as a “plus” factor to evaluate a candidate as an individual; that is race can be used as a factor to consider an applicant’s candidacy holistically.[11] Unlike the Affirmative Action system, however, quotas are inherent to the Reservation System. The Reservation System derives its name from the fact that seats are specifically “reserved” in the Indian Constitution for enumerated groups.[12] One criticism of the Reservation System is its susceptibility to being misused to cultivate contemporary political power, rather than to promote the rights of disadvantaged groups.[13] The susceptibility of the Reservation System to political jockeying is linked to the fact that the Indian Constitution gives legislators total authority to enforce the Reservation System.[14] Additionally, because the Reservation System is enumerated in the Indian Constitution, the Indian Supreme Court is limited in its ability to check reforms that may be little more than veiled attempts to gain political power, rather than sincere attempts to create equity for disadvantaged groups.[15] Affirmative Action, of course, is also a political issue in the United States.[16] However, because the terms of the Affirmative Action system are not explicitly enumerated in the United States constitution, but rather derived from the constitution’s equal protection provisions, the United States Supreme Court can act as a check on private and public Affirmative Action policies that may be overly broad and contrary to the purpose of Affirmative Action.[17]
One criticism shared by both Affirmative Action and the Reservation System is that race- or caste-focused policies should be replaced by neutral policies, namely considering an individual’s socioeconomic status, rather than an individual’s race or caste, as a shibboleth for an individual’s disadvantage.[18] However, while economic disadvantage should be weighed in considering how to make access to opportunities more equitable, considering economic disadvantage should not come at the cost of also considering race and caste. In India, discrimination on the basis of caste is still widespread, as evidenced by Human Rights Watch’s finding that even when Dalits are placed in jobs as part of the Reservation System, they are given low-level jobs and that there is much resistance to Dalits’ entering educational and governmental institutions.[19] Thus, moving away from acknowledging race and caste-based discrimination to only acknowledging a race- or caste-neutral understanding of disadvantage will not alleviate the issues faced specifically by members of historically disadvantaged castes and races. Additionally, conducting race- and caste-neutral considerations silences the importance of experiences individuals have because of their racial or caste identity. The United States Supreme Court discussed and acknowledged the value of an individual’s experiences informed by race in Grutter v. Bollinger.[20] In Grutter, the Court upheld an admissions process that factored in race to achieve a “critical mass” so that “underrepresented minority students do not feel isolated or like spokespersons for their race.”[21] In doing so, the court acknowledged that racial backgrounds may affect viewpoints and the educational environment as a whole.[22] The Reservation and Affirmative Action systems are not perfect and there are legitimate criticisms to how each system can be improved to better serve its mandate. However, the underlying goal of actively attempting to create a more equitable society is admirable and should be supported.
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[1] Joan Biskupic, Affirmative Action: Challenge to Harvard’s Admissions Practices Hits Federal Appeals Court, CNN, (Sept. 16, 2020, 7:01 AM), https://www.cnn.com/2020/09/16/politics/affirmative-action-harvard/index.html.
[2] Judith Heyer & Niraja Gopal Jayal, The Challenge of Positive Discrimination in India 5 (Centre for Research on Inequality, Human Security and Ethnicity, Working Paper No. 55, 2009).
[3] Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961); Jackie Mansky, The Origins of the Term ‘Affirmative Action,’ Smithsonian Mag. (Jun. 22, 2016), https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/.
[4] Soutik Biswas, Is Affirmative Action in India Becoming a Gimmick?, BBC News, (Jan. 10, 2019), https://www.bbc.com/news/world-asia-india-46806089; Regents of the University of California v. Bakke, 438 U.S. 265, 316-18 (1978).
[5] Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/affirmative-action/ (last visited Oct. 25, 2020); See e.g., India Const. art. 243D (stating that seats are reserved in Panchayats for Scheduled Castes and Scheduled Tribes).
[6] What is India’s Caste System?, BBC News (Jun. 19, 2019), https://www.bbc.com/news/world-asia-india-35650616.
[7] What is India’s Caste System, supra note 6; Sanjoy Chakravorty, Viewpoint: How the British Reshaped India’s Caste System (June 19, 2019), https://www.bbc.com/news/world-asia-india-35650616; See also https://www.bbc.com/news/world-asia-india-48619734.
[8] Alexander Lee, Does Affirmative Action Work? Evaluating India’s Quota System 8 (Apr. 8, 2019), http://www.rochester.edu/college/faculty/alexander_lee/wp-content/uploads/2019/04/respaper4.pdf.
[9] Id.
[10] Id.
[11] 438 U.S. at 316-18.
[12] See e.g., See e.g., India Const. art. 243D (stating seats are reserved in Panchayats for Scheduled Castes and Scheduled Tribes in proportion to their populations in an area).
[13] Biswas, supra note 4.
[14] Siely Joshi, The Constitutional Flaws of India’s Attempt to Promote Equality and a Look at the United States Constitution as a Solution, 32 Wis. Int’l L.J. 195, 209 (2014).
[15] Id.
[16] Louis Menand, The Changing Meaning of Affirmative Action, New Yorker (Jan. 13, 2020), https://www.newyorker.com/magazine/2020/01/20/have-we-outgrown-the-need-for-affirmative-action (stating that President Trump is the first Republican presidential candidate to win the presidency since the civil rights era who did not run on a platform opposing Affirmative Action).
[17] Joshi, supra note 14 at 208; Noah Feldman, Affirmative-Action Lessons from India’s Castes, Bloomberg (Sept. 2, 2015, 4:42 PM), https://www.bloomberg.com/opinion/articles/2015-09-02/affirmative-action-lessons-from-india-s-castes.
[18] Feldman, supra note 17; See also Biskupic, supra note 1.
[19] Hidden Apartheid: Caste Discrimination Against India’s “Untouchables,” Human Rights Watch (Feb. 12, 2007), https://www.hrw.org/report/2007/02/12/hidden-apartheid/caste-discrimination-against-indias-untouchables.
[20] 539 U.S. 306, 340-41 (2003).
[21] Id. at 319, 340.
[22] Id. at 340-41.