Affirmative Action and Reservations – The Missing Links

The recent reservation debates, while drawing comparisons with Affirmative Action (AA) of USA, fail to highlight the proactive facet of AA. AA is superior to our reservations both in letter, spirit and scope. While the Indian reservation system extends to the Government sector alone, the historic Executive Order 11246 issued by President Lyndon Johnson covers almost 200,000 government contractors and sub-contractors.

This article, while quoting Adarand Constructors v. Pena fails to inform the background of the case. The case challenged one of the remarkable components of AA, the minority set-aside programs. These require the Federal, State and Local Governments to set aside a percentage of funds exclusively for minority contractors. Such provisions are glaringly missing in our reservation system. Public Works Employment Act, 1977, which was the first legislation to implement set aside programs, was challenged in the Supreme Court by white contractors and the Supreme Court upheld the law in Fullilove Vs Klutznick. Sadly, the Bhopal Declaration, which touted for such measures, hibernates in the UPA's Common Minimum Programme.

On the AA front, the Supreme Court of USA has played a pioneering role upholding it and ensuring that it is followed in various aspects inter alia education, recruitment, entrance tests etc. Some of them deserve a mention here.

The Regents of the University of California v. Bakke, in addition to ruling in favour of racial preference for disadvantaged groups, also held that “the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions” and that being a minority group could “be deemed a plus in a particular applicant’s file”. Unfortunately, in India, instead of recognizing the role reservation in ensuring diversity, it is treated as a sop to the deprived classes.

In the United States v. Paradise, the Supreme Court upheld the District Court for the Middle District of Alabama’s rulings with regard to discrimination in the employment of black trooper. In 1972, the court ordered to hire one black trooper for every white trooper till the percentage of black trooper reaches 25, when it found that in the past 37 years not even a single black trooper was recruited. After 11 years, when the District Court found that the progress had been tardy, it followed up with the order of promotion of one black trooper for each white trooper elevated in rank. On the contrary, in India, most of the reservations go unfilled and administratively get reclassified as “Backlog Vacancies”.

On the issue of entrance tests for employment purposes, the U.S Supreme Court, in the Griggs v Duke Power Company (1971), ruled that the Civil Services Act banned discriminatory employment practices that cause exclusion of disadvantaged groups, when it cannot be shown that those practices relate to job performance. The employment practices include intelligence tests and minimum education qualifications. Further, to ensure that the practices followed relate to job performance, the court ruled that the correlation between high scores in tests and high job performance must be shown by the employers.

In Albemarle Paper Company Vs Moody (1975), the Supreme Court ruled that culturally biased tests were illegal even if the employer was not discriminating intentionally. In Connecticut et al Vs Adele (1982), the same court said that using culturally biased tests were illegal even if the state promoted more blacks than whites. Infact, till the Civil Services Act, 1991 was passed, most recruitment processes followed a practice called Race Norming where additional marks where awarded to the minorities to offset the cultural bias in the tests. In sharp contrast, glaring cultural biases like testing English vocabulary in exams like CAT and predominant usage of English as the medium of tests have gone unchallenged in our country where most of the disadvantaged students are tutored in vernacular medium.

Such comprehensive and detailed implementation of Reservations is sorely missing in India. Yes, we can’t compare AA with reservations. They have a far wider, deeper and more honest reach.