It is important to link the proviso of Article 13(3) [the power of the state to make special provisions for the protection, empowerment or advancement of some specified groups of people] with the American principle of Affirmative Action. Affirmative action is sometime also called ‘reverse discrimination” or “positive discrimination.” Note Article 35(14) of the Interim Constitution which uses the term “positive discrimination” as an isolated reference for us.
Affirmative action in the US is the consideration of race, gender, or other factors, to benefit an underrepresented group or to address past injustices done to that group. Individuals who belong to the group are preferred over those who do not belong to the group, for example in educational admissions, hiring, promotions, awarding of contracts, and the like. Such action may be used as a “tie-breaker” if all other factors are inconclusive, or may be achieved through quotas, which allot a certain number of benefits to each group.
In the United States, affirmative action refers to equal opportunity employment measures that Federal contractors and subcontractors are legally required to adopt. These measures are intended to prevent discrimination against employees or applicants for employment on the basis of “color, religion, sex, or national origin” During reconstruction in the United States, from 1865 to 1877, following the Civil War, American Congress enacted race-conscious programs primarily to assist newly freed slaves who had personally been denied many advantages earlier in their lives. Such legislation was enacted by many of the same people who framed the Equal Protection Clause of the American Constitution, though that clause did not apply to such federal legislation, and instead only applied to state legislation. Likewise, the Equal Protection Clause does not apply to private universities and other private businesses, which are free to practice affirmative action unless prohibited by federal statute or state law.
Several important affirmative action cases to reach the Supreme Court have concerned government contractors. But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003).
In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. The Grutter v. Bollinger(2003), was a landmark case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. The court ruled that the University of Michigan Law School had a compelling interest in promoting class diversity. It held that a race-conscious admissions process that may favor “underrepresented minority groups,” but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system that would have been unconstitutional under Regents of the University of California v. Bakke.
Gratz v. Bollinger was another United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy. In a 6–3 decision announced on June 23, 2003, Chief Justice Rehnquist, writing for the Court, ruled the University’s point system’s “predetermined point allocations” that awarded 20 points to underrepresented minorities “ensures that the diversity contributions of applicants cannot be individually assessed” and was therefore unconstitutional. In this case, the Court invalidated Michigan’s undergraduate admissions policy, on the grounds that unlike the law school’s policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.
In these affirmative action cases, the American Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter v. Bollinger, and a Harvard College admissions policy praised by Justice Powell’s opinion in Regents of the University of California v. Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity.