July 12, 2023 In Uncategorized


This Article examines the issue of affirmative action in higher education, with particular attention paid to a comparative analysis between the Indian situation and the recent U.S. Supreme Court ruling on college admissions (a non-profit organization by the name Student for Fair admissions field lawsuits against Harvard University and other institute to outlaw racial preferences). Affirmative action has been a divisive policy in both countries, in order to address historical injustices and advance diversity. The U.S. Supreme Court’s ruling, which limited the consideration of race in admissions, ignited a national debate on equal protection and racial equality. Similarly, in India, affirmative action policies, known as “Reservations”, have been implemented to uplift marginalized communities, but they are also criticised for fostering caste-based divisions.


Affirmative action is a policy approach for addressing historical injustices and discrimination faced by marginalized communities. In India and the United States, affirmative action has been implemented differently, reflecting the distinctive socio-political settings of each nation. While India uses reservations to give historically disadvantaged groups access to education and employment opportunities, the United States has practiced race-conscious admissions in colleges and universities. This Article aims to express a comprehensive comparative analysis of affirmative action in India and the U.S., exploring their historical background, legal frameworks, societal impact, challenges, and potential reforms.

Affirmative Action in the United States:

Affirmative action has been a pivotal policy in the United States aimed at addressing historical racial and ethnic discrimination, promoting diversity, and fostering equal opportunities in education and employment. The following cases deal with the evolution of affirmative action in the U.S., significant case laws, and the ongoing debates surrounding its efficacy and potential alternative approaches

Key Supreme Court Cases:

Several landmark Supreme Court cases have shaped the scope and implementation of affirmative action policies in the United States. Two significant cases are highlighted:

Regents of the University of California v. Bakke (1978): This landmark Supreme Court case addressed affirmative action in higher education. The Court ruled that while race could be considered as one of many factors in admissions, strict racial quotas were unconstitutional. This judgment introduced the concept of “affirmative action without quotas.”

Grutter v. Bollinger (2003): Where the Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. The Court recognized the importance of diversity in higher education and concluded that race could be a factor in admissions decisions to achieve a diverse student body.

As the nation continues to grapple with issues of race, diversity, and equal access, debates surrounding affirmative actions future and potential reforms will remain at the forefront of the national conversation. The goal is to strike a balance between promoting diversity and considering individual merit while ensuring that all individuals have an equal chance to succeed and contribute to the country’s progress

Debates and Challenges:

Constitutionality: Critics argue that affirmative action programs violate the principle of equal protection under the law, as enshrined in the 14th Amendment of the U.S. Constitution. They believe that race-based preferences are inherently discriminatory and should not be used in admissions or employment decisions. Proponents, on the other hand, assert that affirmative action is a necessary remedy to address historical and ongoing systemic discrimination.

Merit vs. Diversity: Opponents of affirmative action argue that merit should be the sole criterion for admissions and employment, asserting that race should not be a factor in decision-making processes. They contend that individuals should be judged solely on their qualifications, abilities, and achievements. Proponents argue that diversity is a compelling state interest that contributes to educational and workplace environments, fostering creativity, cross-cultural understanding, and breaking down stereotypes.

Colorblind vs. Color-Conscious: Some critics propose a colorblind approach, advocating for policies that do not consider race at all. They argue that race-neutral programs, such as socioeconomic-based initiatives, would address the underlying socioeconomic disparities without engaging in explicit racial classifications. Proponents argue that a color-conscious approach is necessary to acknowledge the unique experiences and challenges faced by different racial and ethnic groups.

Alternatives and Reforms: In response to legal limitations and opposition to affirmative action, alternative approaches have been suggested. These include socioeconomic-based affirmative action, which considers an individual’s socioeconomic background rather than their race, and class-based affirmative action, which focuses on economic disadvantage instead of race. These alternatives aim to address broader inequalities while avoiding the use of racial preferences.

The Court’s Decision and its Impact:

Affirmative action in university admissions has faced legal challenges that may have far-reaching consequences for diversity and inclusion in higher education. The Court decisions against Harvard University and the University of North Carolina have limited the power of colleges and universities, especially those with selective admissions processes, to consider an applicant’s race as a factor in the admissions process. The potential decline in the admission of Black, Latino, and Indigenous students at highly selective institutions and the cascading reshuffling of students to other universities present significant challenges for achieving equal representation in higher education. As the nation navigates the evolving landscape of affirmative action, it becomes crucial to find solutions that balance the pursuit of diversity and inclusion with the principles of fairness and equal opportunity for all students. By imposing restrictions on race-conscious admissions policies, these rulings have sparked debates about the constitutionality of affirmative action in higher education.

Affirmative Action in India:

Affirmative action, also known as reservation, has been a significant tool in India’s quest to address historical social and economic injustices faced by marginalized communities. Rooted in the country’s complex caste system, affirmative action policies aim to promote inclusivity, uplift disadvantaged groups, and ensure equitable access to education and employment opportunities

Historical background of Affirmative Action in India:

India’s reservation policy can be traced back to the deeply ingrained caste system, which has perpetuated social hierarchies and discrimination for centuries. The Constitution, adopted when India attained independence in 1947, empowers the government to make special provisions for the advancement of socially and educationally backward classes through Articles 15(4) and 16(4). These provisions include reservations in educational institutions and government jobs.

Key Case Laws:

Affirmative action has played a crucial role in India’s journey towards social justice and inclusivity. Two key case laws have shaped reservation policies:

Indra Sawhney vs Union of India (1992): Commonly known as the Mandal Commission case, this landmark judgment addressed the implementation of reservations for Other Backward Classes (OBCs) in public employment and educational institutions. The Supreme Court upheld the use of quotas while capping reservations at 50% and emphasized that economic backwardness could be a criterion, along with social backwardness, for reservation.

Nagaraj v. Union of India (2006): In this case, the Supreme Court ruled on the validity of providing reservations in promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs) in public employment. The court held that the government must collect quantifiable data to demonstrate the backwardness of these communities and the inadequacy of their representation before introducing such quotas.

The courts have shaped the contours of reservation policies while acknowledging the need to balance representation with merit. As India continues to evolve, the ongoing debates and potential reforms in affirmative action will remain central to the nation’s commitment to building an inclusive society that uplifts the most marginalized.

Debates and Reforms:

While affirmative action in India has made strides in increasing representation and access to opportunities for marginalized communities, it has also faced criticism and calls for reform:

Caste-Based vs. Economic-Based Reservation: Critics argue that caste-based reservations perpetuate social divisions and may not accurately target those most in need. Some propose transitioning towards economic criteria to ensure that reservations benefit the truly disadvantaged from all social backgrounds.

Reservation Ceiling: The 50% reservation cap, set by the Mandal Commission case, has been a subject of debate. Some argue that it limits the Government’s ability to adequately address the needs of various communities, while others stress the importance of maintaining a balance to avoid reverse discrimination.

Creamy Layer Exclusion: The concept of the “creamy layer” excludes relatively better-off individuals within reserved categories from the benefits of affirmative action. There are debates about its effectiveness in addressing deep-rooted disadvantages.

Ensuring Quality of Education: Affirmative action has increased enrollment of marginalized students in educational institutions, but concerns remain about the quality of education and support provided to ensure their success.

Future Prospects and Recommendation for both the nations:

As both India and the United States grapple with the complexities of affirmative action, it is crucial to seek a balanced and sustainable approach that tackles historical inequalities while promoting meritocracy and inclusivity. Rather than relying solely on reservations or race-conscious admissions, comprehensive policies should be considered to address the root causes of social and economic disparities.

In the United States, exploring the potential of class-based affirmative action could offer a more nuanced approach, addressing economic inequality while upholding diversity. Additionally, efforts must be directed towards improving access to quality education and resources in underserved communities, ensuring equal opportunities for all applicants.

In India, continuous evaluation and reform of the reservation policy are necessary to ensure its ongoing relevance and effectiveness in addressing the changing dynamics of inequality. Embracing mechanisms that take into account various dimensions of disadvantage, such as economic status and regional disparities, can contribute to a more holistic approach to affirmative action.

Affirmative action continues to be a highly debated and divisive topic in both India and the United States, eliciting a range of opinions and levels of support or opposition. In the United States, public views on race-conscious admissions display deep divisions, with some advocating for diversity preservation and equal representation, while others criticize it as reverse discrimination. Similarly, in India, public sentiment regarding reservations is diverse, encompassing both ardent supporters and vocal critics.

Political responses to affirmative action also diverge between the two countries. In the United States, the recent ruling by the Supreme Court reflects the scepticism of the conservative majority towards race-conscious admissions. Consequently, there are calls for legislative action or potential amendments to address the complexities surrounding affirmative action in the future. In India, political parties often leverage the reservation policy as a crucial electoral issue, resulting in ongoing debates and adjustments to the extent of reservations based on changing political dynamics.


Affirmative action policies in India and the United States are shaped by their unique historical, social, and legal contexts. The fundamental goals of promoting equal opportunity, combating discrimination, and fostering diversity remain central. Continual dialogue, assessment, and adaptation are necessary to strike a balance between meritocracy and inclusivity. Affirmative action should be viewed as one component of a comprehensive strategy aimed at building a more equitable and fair society for all.

Editor’s Comments

In India, the policy of reservations is a burning issue that has a great impact on the lives of many. More so on the lives of students who are trying to get into professional courses. Whether the system of reservation is correct or not is very debatable. However, there is no doubt that merit should be the thumb rule for decision making in any walk of life. If one uses merit as a yardstick, society stands to gain and overall competence will improve, raising the bar at all levels. There is, however, no doubt a requirement to give the underprivileged and backward classes an opportunity to improve their lot in life. But whether reservation is the only way forward is still questionable.



Sujal Garg


Fourth Year

Dharmashastra  National Law University, Jabalpur



Manjari Tripathi 

Third Year

Dharamshastra National Law University, Jabalpur


Edited by

Sushila Ram Varma

Chief  Consultant

The Indian Lawyer & Allied Services

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