What Affirmative Action Is

In one line

Affirmative action is what a State does when stopping discrimination is not enough to undo its effects.

In the wording a student can write in an exam: affirmative action is State action taken in favour of a group historically subjected to discrimination, so as to correct the continuing effects of that discrimination; in India it is called reservation and is authorised by express enabling provisions in Part III, and in the United States it is called affirmative action and has been developed by executive order, statute and judicial doctrine within a constitutional text that forbids classification by race.

The four names

Reservation is the Indian term and describes the Indian device accurately: a fixed proportion of seats or posts set apart for a specified class.

Affirmative action is the American term and originates in an executive order requiring contractors to take affirmative action to ensure non-discrimination in employment.

Positive discrimination and positive action are the British terms, and they are distinguished from each other in British law: positive action, meaning measures such as targeted encouragement and training, is lawful within limits, while positive discrimination, meaning preferring a person because of a protected characteristic, is generally unlawful.

Protective discrimination is used in older Indian writing and captures the constitutional theory: the measure protects rather than favours.

An answer that uses the words interchangeably will not notice that Britain permits the second and forbids the third.

Two things that are not the same

Preventing discrimination requires the State to stop treating people differently on a prohibited ground, and to stop others from doing so. It is achieved by articles 15(1) and 16(2), by the equal protection clause and by anti-discrimination statutes.

Correcting its effects requires the State to treat people differently in the opposite direction, because a rule that is neutral from today operates on a distribution of advantage produced by centuries of the opposite rule.

The whole of this topic is about the second, and the constitutional difficulty is that the second appears to breach the first.

How each system resolved it

India resolved it in the text. Articles 15(4), 15(5), 16(4) and 16(4A) are enabling provisions, and each says that nothing in the article shall prevent the State from making a special provision or a provision for reservation. The device is placed inside the equality articles as an exception, so the argument that reservation breaches equality is answered by the Constitution itself.

The United States did not. The Fourteenth Amendment contains no enabling clause, so a race-conscious measure is a racial classification and receives strict scrutiny, whatever its purpose. Everything in the American story follows from the absence of an article 15(4).

That single structural difference explains the different shape of the two bodies of law, and the closing chapter of this book returns to it.