The recent reservation debates, while drawing comparisons with Affirmative Action (AA) of
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
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
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
