The Two Systems Compared

In one line

India wrote affirmative action into its constitution and America read it into one that does not mention it, and everything else follows from that.

In the wording a student can write in an exam: the Indian and American systems of affirmative action differ in source, since India's rests on express enabling provisions and America's rested on executive action, statute and judicial doctrine; in justification, remedial and representational against educational; in instrument, a fixed percentage against individualised consideration; and in direction of travel, expansion against contraction.

The single structural difference

The Indian Constitution contains articles 15(4), 15(5), 15(6), 16(4), 16(4A) and 16(6). The Fourteenth Amendment contains no counterpart.

Everything else on this topic is downstream of that sentence.

Because India has enabling clauses, the question whether the State may classify by a suspect ground is closed, and Indian argument is about who qualifies, how much may be reserved, and for how long. Hence the litigation about backwardness, the creamy layer, the ceiling, promotion and sub-classification.

Because America has none, the question whether the State may classify at all is open every time, and American argument is about whether the measure may be taken. Hence strict scrutiny, compelling interest, narrow tailoring and the search for a justification that would survive.

And that is why the two bodies of law do not talk to each other. An Indian lawyer asks how disadvantaged the group is; an American lawyer asks how the government may justify noticing the group at all. They are not answering the same question.

The four differences, argued

Source. India amended its Constitution eight times to build this power. America proposed and never passed an equivalent, so its practice rested on Executive Order 10925, on Titles VI and VII, and on a judicial doctrine. A doctrine can be narrowed by the court that made it, and over forty five years it was; a constitutional text cannot be, except by amendment or by the basic structure doctrine, and Janhit Abhiyan shows how hard the latter is to invoke.

Justification. India's is written into the clause: backwardness in article 15(4), inadequate representation in article 16(4), the weaker sections in article 46. It is remedial and representational, and the benefit runs to the beneficiary. America's, after Bakke foreclosed the remedial justification for societal discrimination, was diversity, which is forward-looking and educational, locates the benefit in the institution and the other students, and was finally rejected as not sufficiently focused or measurable.

Instrument. India reserves a percentage. America forbade a percentage in 1978 and forbade a points scheme in 2003, leaving an individualised weighing which it then held unreviewable in 2023. The irony is exact: the American doctrine outlawed the measurable device and struck down the unmeasurable one for being unmeasurable.