Affirmative Action: India's Example

Civil Rights Journal, Fall, 1999 by Clark D. Cunningham

As the U.S. debate over affirmative action seems to grow ever more rancorous and divisive, it seems clear that America desperately needs an infusion of new ideas to address the fundamental problems that affirmative action programs were intended to remedy. Help may be available from an unexpected source: the legal systems of other countries. Many other multi-cultural democracies have also been struggling to reconcile a commitment to equality with the need to remedy the effects of past discrimination; America might well be able to learn from their experiments. Indeed it is not even necessary that we know whether another country's experiment can be judged a success or failure in that country; studying their approach can be valuable simply if it expands our own vision of what is possible. The suggestions that appear here for redesigning American affirmative action are offered in this spirit: to provoke at least some new discussion and to prompt greater curiosity about what is happening outside our borders.

India has developed a legal system that is probably more similar to that of the United States than that of any other country, particularly in the field of constitutional law. Both countries use a federal system with power shared between states and a central government. Both have written constitutions containing similar guaranteed rights; both have supreme courts with vast powers including the power to declare statutes unconstitutional; both countries turn to their courts to resolve their most important public controversies. (Indian law is also very accessible to U.S. readers because, like American law, it rests on the foundation of the English common law and because the constitution, statutes and appellate court decisions are all written in English.)

Affirmative action in the U.S. focuses on whether it can be shown that each beneficiary of an affirmative action program is likely to have suffered from what can be called the "cognitive bias" form of discrimination, that is, a harm caused by an actor who is aware of the person's "race" and is motivated (consciously or unconsciously) by that awareness. Much of the current skepticism about affirmative action may result from this narrow focus: many white people seem to believe themselves free of such cognitive bias and thus doubt that it is a continuing problem of sufficient magnitude to justify affirmative action. Such a focus makes affirmative action particularly vulnerable in settings like university admissions where decisions based on grades and test scores seem, to many, to be immune to cognitive bias.

Although cognitive bias-type discrimination based on caste status is treated as a serious, continuing problem in India, affirmative action there is focused more on eradicating the enduring effects from centuries' of oppression and segregation. There appears to be a more conscious commitment than in the U.S. to change the basic social structure of the country. The Indian approach perhaps can be understood best using the economic theory pioneered by Glenn Loury that distinguishes between "human capital" and "social capital." Human capital refers to an individual's own characteristics that are valued by the labor market; social capital refers to value an individual receives from membership in a community, such as access to information networks, mentoring and reciprocal favors. Potential human capital can be augmented or stunted depending on available social capital. Economic models demonstrate how labor market discrimination, even several generations in the past, when combined with ongoing segregated social structure can perpetuate indefinitely huge differences in social capital between ethnic communities. The limitation of human potential caused when access to social capital is blocked is viewed in India not only as a personal tragedy, calling out for compassion and justice, but also as a huge loss to the society itself, that must be remedied given the vast needs and aspirations of the world's largest democracy. Although, for historical reasons, affirmative action in India is phrased largely in terms of assisting "backward" groups, "backwardness" should be understood as a comparative rather than a pejorative or patronizing term. Indians are acutely aware that the problem of unevenly distributed social capital can arise as much from the concentration of social capital in a few "forward" groups as from any deficiency in "backward" groups.

In 1951, only a year after the newly independent India adopted its constitution containing guarantees of equality taken in part from U.S. law, the Indian Supreme Court was faced with a case remarkably like the landmark 1978 Bakke case (in which the U.S. Supreme Court barred the use of racial quotas for admission to a state medical school but permitted consideration of race to achieve diversity). A medical school had used a detailed and rigid quota system based on caste and religious categories to assure that its entering class had a demographic make up similar to that of the general population. The Court ruled in favor of the petitioner, a high caste Hindu denied admission. The Parliament immediately modified the ruling by using its power to amend the constitution by a two-thirds vote of each house to add an explicit "affirmative action" exception to the constitutional guarantee of equality, authorizing "special provision" for the advancement of "socially and educationally backward classes of citizens."