Affirmative Action Through Financial Aid: Is India's Constitutional Framework Ready For Private Diversity Scholarships? A Comparative Study With The USA
Anushka Pandey, Narsee Monjee Institute of Management Studies, Chandigarh
ABSTRACT
The understanding of affirmative action in higher education in the case of India has been that of a constitutionally mandated State duty flowing from Article 15 and 16 of the Constitution while in the case of the US it has been that of an exception to the otherwise strict equality of protection guarantee of the Fourteenth Amendment of the US Constitution. However, one relatively new and not very well theorised question in affirmative action in higher education is whether non-State institutions, viz., corporations, trusts, foundations, philanthropists, can independently set up diversity scholarships using caste, religion, gender and economic class as markers and if so, then under what kind of constitutional and statutory restrictions. The paper will attempt a comparative doctrinal examination of the constitutional law on affirmative action in India and the US, particularly focussing on whether the Indian jurisprudence, founded upon Articles 14, 15, 15(5), 16, 19(1)(g) and elaborated in cases like Indra Sawhney v. Union of India, T.M.A. Pai Foundation v. State of Karnataka, P.A. Inamdar v. State of Maharashtra and Janhit Abhiyan v. Union of India, is ready for privately endowed diversity scholarships. This paper draws a distinction between the Indian case and that of the United States, where the judgement in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and the further invocation of 42 U.S.C. Section 1981 in American Alliance for Equal Rights v. Fearless Fund Management, LLC have considerably restricted the ambit of race- conscious decision-making even for private entities. It makes a case for the fact that the Constitution of India, as compared to the Fourteenth Amendment to the American Constitution, is horizontally silent on private discrimination in this sphere.
