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Comparative Analysis of Affirmative Action in India and South Africa

What is affirmative action, how did it come into action, how is it defined and implemented
in the two nations, the beneficiary groups in both the nations and how are the practices
different, current state of affairs, way forward.
 Comparative Analysis of Affirmative Action in India and South Africa

INTRODUCTION

In 2001, representatives from throughout the Americas gathered to develop strategies to

remedy racial discrimination. Chief among the group’s tactics was the adoption of affirmative
or positive actions and strategies” aimed at “creating conditions for all to participate
effectively in decision-making and realize civil, cultural, economic, political, and social
rights in all spheres of life on the basis of non-discrimination.”
These ideas found significant support at the World Conference against Racism, whose
Declaration and Programme of Action recognize affirmative action as a key element in the
international struggle against racism and racial discrimination. As the results of these
meetings might indicate, affirmative action is strongly endorsed by international law, as seen
through the language of regional and international treaties and the decisions of global and
regional institutions. Countless norms mandate equality and non-discrimination, while
additionally requiring states to take active measures to guarantee these rights. Certain norms
implicitly require affirmative action where inequalities are present. Some norms mention
affirmative action to note that such actions would be permissible under non-discrimination
provisions. Others explicitly mandate affirmative action. While the contours of these norms
differ slightly, one thing is certain: Where there is proven inequality among people of
different races, international law— either implicitly or explicitly—requires states to engage in
affirmative action.
Affirmative action refers to institutional measures taken to increase the representation of
women and people of color in areas of employment, government contracts, and higher
education from which they have been excluded historically. The policy began as a response
to the failure of businesses with government contracts to hire women, persons with
disabilities, and minorities. These groups were discriminated against and denied equal access
and opportunity. Hence, following the Civil Rights Act of 1964, affirmative action was
initiated by Executive Order 11246 by President Lyndon Johnson in 1965. The executive
order required organizations receiving government funding or contracts to adopt programs to
promote the aggressive recruitment and retention of underrepresented populations.

Three major concepts form the basis for affirmative action.

First, all of society is strengthened by diversity, equality, and inclusion.
Second, preferences for women and minorities help to (a) neutralize unearned advantages that
favor the privileged majority and (b) prevent further exclusion of women and minorities from
higher education and the workplace.
Finally, the federal government has the legal and social responsibility for enforcing programs
to eliminate existing discriminatory practices of institutional racial preference that infringe on
equal opportunity.
Over the past 3 decades, affirmative action has faced considerable opposition in the courts
and public debate forums. In the late 1970s, the establishment of racial quotas under
affirmative action was criticized as an antithetical practice of promoting preferential
treatment. This “reverse discrimination” argument was accepted by the U.S. Supreme Court
in Regents of the University of California v. Bakke (1978), which let existing programs
remain but reduced the use of affirmative action to voluntary programs. In 1989, the Supreme
Court ruled in favor of reverse discrimination claims and eliminated the use of minority set-

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 Comparative Analysis of Affirmative Action in India and South Africa

asides where past discrimination was unproven. Still, affirmative action is often associated
with being a quota system, when, in fact, affirmative action programs can only require that
institutions take cognizance of the demographics of their constituents. Quotas have only been
court ordered in instances after a finding of overt discriminatory practices by a company.
Even in such cases, proving discriminatory practices was extremely difficult in that statistics
were deemed inadmissible, as they did not prove intent. As a result of these rulings, the
federal government’s role in affirmative action was significantly diminished.
The Civil Rights Act of 1991 was established in effort to restore government commitment to
affirmative action, but a 1995 Supreme Court decision limited the use of race as a criterion in
awarding government contracts. In response to that decision, President Clinton put forward a
White House memorandum that called for the elimination of any program that
(a) creates a quota;
(b) creates preferences for unqualified individuals;
(c) creates reverse discrimination;
(d) continues even after its equal opportunity purposes have been achieved.
In 1996, Proposition 209 called for an end to the use of affirmative action in California, and
the use of race- and gender-based preferences was banned in the state the following year.
Affirmative action was also abolished by Initiative 200 in Washington State, further
demonstrating a strong opposition to the policy on a state level.
More recently, a landmark 2003 Supreme Court decision involving the University of
Michigan allowed educational institutions to consider race as one of many factors for
admission as long as it was applied broadly when evaluating students and not used in a
formulaic manner. As a result, more systematic affirmative action procedures such as setting
aside admissions slots for students of color or assigning weighted points for race were
eliminated. The Supreme Court ruled that affirmative action was no longer justified as a tool
to redress past discrimination but was upheld as means to increase diversity at all levels of
society.
Although the phrase ‘affirmative action’ apparently originated in the United States in 1961,
the practice of providing benefits or preferential treatment to individuals based on their
membership in a disadvantaged group can be found in a wide variety of forms in many other
countries. For example, India developed affirmative programs as early as 1927, and was
probably the first country in the world to create a specific constitutional provision authorizing
affirmative action in government employment. Other countries with more recently developed
affirmative action programs include Australia, Israel, and South Africa.
These challenges to affirmative action have the potential to jeopardize minority recruitment
rates and opportunities for higher education and employment. As agents of social justice,
counseling psychologists must understand the issues in the controversy over affirmative
action. Minimally, counselors must stay informed as to the current status of affirmative action
policies and must maintain awareness of how changes to such programs affect the lives of
their clients of color. Within a counseling context, clients of color may present with some of
the adverse effects of being stigmatized as beneficiaries of affirmative action programs. As a
result, clients may experience doubts about their own merit and self-efficacy, stereotype
threat, and enhanced pressure to demonstrate competence. Counselors must be prepared to
address such issues.

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Selection of Beneficiary Groups: India appears to be unique among the countries of the
world in the degree to which its affirmative action programs have wrestled with the problem
of selecting beneficiary groups. The constitutional provisions authorizing affirmative action
identify three general categories: (a) Scheduled Castes (descendants of the former
‘untouchables’), (b) Scheduled Tribes (ethnic groups generally living in remote and hilly
regions), and (c) other ’socially and educationally backward classes of citizens.’ The greatest
difficulty and controversy has focused on selection of groups for this third category, generally
termed the OBCs (Other Backward Classes). In the first three decades after adoption of the
Indian constitution, selection of groups for OBC designation was left largely to state
governments within India’s federal system of government. As a result, the Indian Supreme
Court repeatedly struck down plans that seemed primarily to benefit politically powerful
groups, or that were based on traditional assumptions of caste-based prejudice without
knowing which groups were truly in greatest need.
In 1980 a Presidential Commission (known as the Mandal Commission after the name of its
Chairperson) issued a comprehensive report and set of recommendations for national
standards for OBC designation. Responding to the Supreme Court’s concern about objective
and transparent processes, the Mandal Commission conducted a national survey that started
with generally recognized group categories (typically based on caste name or hereditary
occupation) and tested each group using standardized criteria of ‘backwardness’ (such as
comparing the percentage of group members who married before the age of 17, or who did
not complete high school, with other groups in the same state). Eleven numerical factors,
given varying weights, were assigned to each group based on the survey results and those
groups with total scores below a specified cut-off point appeared in a list of OBCs. The
Commission then recommended that a percentage of new hires for most central government
jobs be reserved for OBC members under a quota system.
The Mandal Report generated lively debate but it was not until 1990 that the national
government actually proposed implementation of the Report. This announcement, by then-
Prime Minister V. P. Singh, prompted widespread civil disturbance, instances of self-
immolation by high-caste Hindus in protest, and litigation leading to three months of oral
argument before the Supreme Court. In 1992 the Supreme Court reached a 6-3 decision,
largely approving the Report and its recommendations. A majority of the Supreme Court
justices approved the following basic principles: (a) Traditional caste categories can be used
as a starting point for identifying OBCs but selection criteria must include empirical factors
beyond conventional assumptions that certain castes are ‘backward.’ (b) Identification of a
group as an OBC cannot be based on economic criteria alone (Indra Sawhney vs. Union of
India 1993).
In contrast to India, affirmative action programs in the US have not used consistent criteria
for defining group boundaries or for selecting eligible groups. For example, one US federal
court struck down a law school admission program at the University of Texas, in part because
only blacks and Mexican Americans were eligible for affirmative action consideration;
Hispanic Americans, Asian Americans and Native Americans were excluded (Hopwood vs.
State of Texas 1996). Many people who oppose affirmative action programs in the United
States because they use racial categories such as black, African American, or Latino claim
that equally effective and more equitable programs can be developed using only class
categories, such as low-income (see Malamud 1996). Economist Glenn Loury, who is
African American, has suggested that affirmative action is not needed by all African
Americans but instead should be focused on a distinct group whose members share the
following characteristics: (a) slave ancestry, (b) rural and Southern origins, (c) current

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 Comparative Analysis of Affirmative Action in India and South Africa

residence in northern cities, (d) current residence in ghettos. He uses the term ‘caste’ to
describe this group (Loury 1997).
In South Africa current affirmative action programs are haunted by the categorization
systems of the apartheid regime that distinguished between black Africans, coloreds (mixed
European and African ancestry), and Indians (some ancestry from the Indian subcontinent).
The ruling party, the African National Congress, in its earlier role as the leading opponent to
apartheid, sought political solidarity among all peoples oppressed by apartheid; it used
‘black’ to refer to Africans, coloreds, and Indians. The 1998 Employment Equity Act,
implementing affirmative action in both the public and private sector, continued this tradition
by targeting ‘Black people’ (combining the three Apartheid-era categories) as well as women
and people with disabilities. However, this selection system exists in tension with the
recognition that coloreds and Indians were differently disadvantaged compared to those
designated by apartheid as ‘black Africans.’ For example, a South African court has upheld a
medical school admission program that gave greater preference to black African applicants
than to Indian applicants (Motala vs. University of Natal 1995).
Determination of Individual Eligibility: In the US, individual eligibility for affirmative
action is usually based solely on membership in one of the selected beneficiary groups. An
apparent exception is the federal Disadvantaged Business Enterprise (DBE) program, an
affirmative action program affecting federally-funded contracts, in which membership of one
of the designated beneficiary groups only creates a presumption of eligibility (see Adarand
Constructors vs. Pena 1995). However, a minority-owned business is not required to provide
additional evidence of disadvantage beyond group membership to be eligible; instead the
presumption is conclusive unless a third party (typically a disappointed competing bidder)
asserts that the individual beneficiary is not personally disadvantaged.
In India, an individual eligibility test is being implemented pursuant to the decision of the
Indian Supreme Court in Indra Sawhney vs. Union of India 1993. This ‘creamy layer’
approach—as it is termed in India—addresses two different but related concerns: (a) that the
benefits of affirmative action are not distributed evenly throughout a backward group but
instead are monopolized by persons at the socio-economic top of the group: and (b) that
benefits are going to persons who do not in fact need them, because they have been raised in
privileged circumstances due to parental success in overcoming the disadvantaged status of
the backward group. Interestingly, the criteria proposed by the national government after the
court’s decision focus more on the wealth and occupation of the individual’s parents than of
the individual, reflecting perhaps continuing sensitivity to the role of social capital in
perpetuating disadvantage (see Class and Law).

AFFIRMATIVE ACTION IN INDIA

BACKGROUND
Affirmative action in India is used to address the discriminatory effects of the caste system, in
which groups were seen hierarchically according to their traditional roles in society. Outside
this system were the untouchables,” who suffered serious prejudice and who now are one of
the primary beneficiaries of affirmative action (along with other groups who have been
systematically marginalized).Although the caste system has long been officially abolished, its
effects persist and, as such, affirmative action is critical for equalizing opportunity for
members of all groups. The Indian Constitution guarantees equality for all citizens by making
clear that “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. At the same time, it explicitly allows for

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 Comparative Analysis of Affirmative Action in India and South Africa

affirmative action programs, providing that “Nothing…shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes. In the field of public
employment, the Constitution says “Nothing in this article shall prevent the State from
making any provision for the reservation of appointments or posts in favour of any backward
class of citizens which, in the opinion of the State, is not adequately represented in the
services under the State. Part XVI of the Constitution specifically lays out in detail the
affirmative action, or “reservation,” program for Scheduled Castes and Scheduled Tribes. In
addition, India has ratified ICERD, the ICCPR, the ICESCR and CEDAW.

AFFIRMATIVE ACTION IN PRACTICE

In 1953, a Backward Classes Commission was established with a mandate to create a list of
groups it believed to be “backward” and to require an improvement in status. (Despite the
fact that affirmative action in India is often referred to as a way to help “backward” groups,
this term, as used in this paper, should not be seen as pejorative. In 1963, the Indian Supreme
Court made clear that a maximum of 50 percent of seats could be reserved for these
Backward Classes.A second Backward Classes Commission, known as the Mandal
Commission, issued a subsequent report in 1980.Using the Supreme Court’s decision as
guidance, this Commission recommended that a total 49.5 percent of federal government jobs
should be set aside for scheduled castes - scheduled tribes - and other backward classes.
Stressing that a lack of discrimination and stated policy of equal opportunity were insufficient
to remedy the negative effects of the caste system, the Commission said: “People who start
their lives at a disadvantage rarely benefit significantly from equality of opportunity. Equality
of opportunity is also an asocial principle, because it ignores the many invisible and
cumulative hindrances in the way of the disadvantaged. It was not until 1992, after months of
hearings by the Supreme Court, that this report was implemented. Many people were
unhappy about the benefits that affirmative action would provide to certain groups, and took
to the streets in violence. Today, scheduled castes and scheduled tribes are reserved seats in
universities, the civil service, and the legislature, in rough proportion to their percentages in
the population. Specifically, the Scheduled Caste quota for government service is 15 percent
and the Scheduled Tribe quota is 7.5 percent. Similarly, seats in the Lok Sabha (House of the
People) and in the state legislative assemblies are reserved for members of Scheduled Castes
and Scheduled Tribes in proportion to their populations in each state. Twenty seven percent
of seats in government jobs and at universities are reserved for OBCs, though they are
reserved none in legislatures (since in many states they make up a majority of the population
and are already represented in politics).Because the Indian Constitution explicitly charges the
government with implementing affirmative action programs for backward classes, Indian
courts have not heard challenges on the use of affirmative action per se. Instead the courts
have been more concerned with determining who falls within protected classes

In one prominent case, for example, the Supreme Court held that implementation of the
Mandal Commission recommendations was constitutional.
Importantly, it also held that the financially well-off portion of the population must be
excluded when determining which members of a class should get affirmative action benefits.
According to the Court, both class and caste are important in determining who should benefit
from affirmative action. They held that no potential beneficiary could have parents that earn
above a certain income, and insisted that children whose parents had reached high-rank in
government or military could not claim reserved positions. This decision also made clear that
“a permanent body, in the nature of a Commission or a Tribunal, to which complaints of

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 Comparative Analysis of Affirmative Action in India and South Africa

wrong inclusion or non-inclusion of groups, classes and sections in the list of OBCs can be
made,” should be established. The government has since established a National Commission
for Scheduled Castes and Scheduled Tribes, which was later split into two separate
Commissions.

EFFECTIVENESS
Today, affirmative action, in the form of reservations, is available for approximately 65
percent of the population. Although problems remain, India’s reservation system has brought
affirmative action’s beneficiaries into the middle class and has increased the mobility of
members of the scheduled castes, scheduled tribes, and other backward classes. It also has
given members of these groups opportunities to participate in government at all levels.

AFFIRMATIVE ACTION IN SOUTH AFRICA

BACKGROUND
When South Africa’s apartheid era came to a close, whites, who comprised 13 percent of the
population, earned 55 percent of the country’s personal income. Black South Africans, who
made up 76 percent of the population, earned just 29 percent. And whites held a
disproportionate number of management positions as well, with one survey showing them in
80 percent of such posts. To remedy these types of discrepancies, the South African
Constitution guarantees equality among persons, and prohibits discrimination on the grounds
of “race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.” At the
same time, it explicitly permits affirmative action. According to Chapter 2, Section 9(2), “To
promote the achievement of equality, legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination may be
taken.” Affirmative action is thus not seen as an exception to the requirement of equality, but
a means by which equality may be brought about. In addition, South Africa has ratified
ICERD, the ICCPR, the ICESCR, and CEDAW.
Two South African laws, in particular, support the use of affirmative action. The Promotion
of Equality and Prevention of Unfair Discrimination Act recognizes the constitutional
requirement of equality and notes that “this implies the advancement, by special legal and
other measures, of historically disadvantaged individuals, communities and social groups
who were dispossessed of their land and resources, deprived of their human dignity and who
continue to endure the consequences.

The Employment Equity Act aims to “achieve equity in the workplace by:
a) promoting equal opportunity and fair treatment in employment through the elimination of
unfair discrimination; and
b) implementing affirmative action measures to redress the disadvantages in employment
experienced by designated groups, in order to ensure their equitable representation in all
occupational categories and levels in the workforce.
Designated groups include “black people, women, and people with disabilities. The
Employment Equity Act requires, among other things, that “Every designated employer must,
in order to achieve employment equity, implement affirmative action measures for people
from designated groups in terms of this Act.

According to Article 15 of this Act:

1. Affirmative action measures are measures designed to ensure that suitably qualified people
from designated groups have equal employment opportunities and are equitably

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 Comparative Analysis of Affirmative Action in India and South Africa

represented in all occupational categories and levels in the workforce of a designated

employer.
2. Affirmative action measures implemented by a designated employer must include:
a. measures to identify and eliminate employment barriers, including unfair discrimination,
which adversely affect people from designated groups;
b. measures designed to further diversity in the workplace based on equal dignity and
respect of all people;
c. making reasonable accommodation for people from designated groups in order to ensure
that they enjoy equal opportunities and are equitably represented in the workforce of a
designated employer;
d. Subject to subsection (3), measures to
i. ensure the equitable representation of suitably qualified people from designated
groups in all occupational categories and levels in the workforce; and
ii. retain and develop people from designated groups and to implement appropriate
training measures, including measures in terms of an Act of Parliament providing for
skills development.
3. The measures referred to in subsection (2) (d) include preferential treatment and numerical
goals, but exclude quotas.
4. Subject to section 42, nothing in this section requires a designated employer to take any
decision concerning an employment policy or practice that would establish an absolute
barrier to the prospective or continued employment or advancement of people who are not
from designated groups.

In addition, the Employment Equity Act requires employers to provide information,

disaggregated by race and gender, showing the compensation and benefits provided for each
job category and, if differentials exist between employees, to take remedial measures to
address this. It also makes clear that a person’s lack of relevant experience is not an adequate
reason for not hiring them if they have the “capacity to acquire, within a reasonable time, the
ability to do the job.”Finally, South Africa has adopted “black empowerment charters,”
which designate, for various industries, the number of shares in that industry that must be
held by blacks. These charters indicate that approximately one quarter of shares held in South
Africa should be owned by blacks within about a decade.

AFFIRMATIVE ACTION IN PRACTICE

In Employment South Africa’s Constitutional Court has repeatedly affirmed the need for
affirmative action to give weight to the country’s constitutional guarantees of equality.
Similarly, in a case about whether an individual could bring suit alleging a violation of
affirmative action obligations, the country’s Labor Court provided its own backing. Here, the
Labor Court held that the Employment Equity Act “indicates a role for affirmative action that
goes beyond the passivity of its status as a defense” to “pro-activeness and self activity on the
part of the employer. The Court said that it must develop “a concept of discrimination which
recognizes that although a society which affords each human being equal treatment on the
basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon
identical treatment in all circumstances before that goal is achieved.” In essence, the Court
concluded that an individual employee may have a cause of action against an employer for
failing to institute affirmative action measures. But in 2004, the Labor Court seemed to
reverse itself. In this case, the plaintiff, a black woman doctor who applied for the position of
the city’s director of health and was not selected for the post, sued the city alleging it failed to
comply with its a affirmative action obligations. But this time, the Labor Court held that the
Employment Equity Act does not provide an individual right to affirmative action and

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 Comparative Analysis of Affirmative Action in India and South Africa

distinguished between provisions of the Act that deal with unfair discrimination and can be
enforced by an aggrieved individual, and others that involve affirmative action and can only
be fulfilled on a collective level. The plaintiff applied for leave to appeal directly to the
Constitutional Court, a request that was denied. It remains to be seen how these two cases
will be squared.

EFFECTIVENESS
As of 2004, approximately one half of those people in South Africa’s middle management
positions and one quarter in its top management positions were black, a significant
improvement from a decade earlier. In particular, blacks have increased their numbers in top
posts within the government in great numbers. The South African government has reported
that the country’s Public Service is now “very close to achieving perfect representation,
edging its way to matching the population profile in both race and gender.”

Despite these successes, however, many challenges remain, including, among other things,
the practice of white-owned companies propping up black-owned companies and the fact that
for the empowerment charters, it remains to be seen how the transfer of shares will be funded.

COMPARATIVE STUDY OF AFFIRMATIVE ACTIONS

Comparative Issues in Designing Affirmative Action Programs
Galanter (1992) identified several issues that are critical to a comparative study of affirmative
action programs: justifications, program designers, selection of beneficiary groups,
distribution of benefits within a group, relations between multiple beneficiary groups,
determination of individual eligibility, resources to be devoted, monitoring, and termination.
This section will provide a comparative analysis of three of these issues; justifications,
selection of groups, and individual eligibility.
Clearly there is a need for more comparative study on affirmative action, although the last
years of the 1990s saw a significant increase in published work in this area. Galanter (1984),
a classic in this area, points out the need to be cautious about the comparative lessons that the
United States and other countries could learn from India. Thomas Sowell, a US economist
critical of affirmative action policies in the United States, has frequently made use of
comparative materials, most extensively in Sowell (1990) which includes sections of India,
Malaysia, Nigeria, and Sri Lanka.
In 1991, during the transition period that led to the abolition of apartheid and the founding of
the new Republic of South Africa, the Constitutional Committee of the African National
Congress convened a conference on ‘Affirmative Action in the New South Africa’ that
included subsequently published studies of affirmative action in India and Malaysia as well
as the United States Centre for Development Studies (1992). A set of conference proceedings
published in 1997 includes cross-national and interdisciplinary perspectives on affirmative
action by public officials and social scientists from India, South Africa, and the United States.
Justifications for Affirmative Action
Affirmative action programs for racial minorities in the US typically seek to remedy harm
caused to specific individuals by ‘cognitive bias,’ that is, harm caused by an actor who is
aware of the person’s race, sex, national origin, or other legally-protected status and who is
motivated (consciously or unconsciously) by that awareness. Much of the current skepticism
in the US about affirmative action may result from this narrow focus: many white people

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 Comparative Analysis of Affirmative Action in India and South Africa

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 admission, where decisions based on
grades and test scores seem, to many, to be immune cognitive bias (see Race and the Law;
Gender and the Law).
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 of centuries of oppression and segregation. There appears to be a more
conscious commitment than in the US 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, which distinguishes between human capital and social capital (Loury 1995).
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. Since the landmark case of State of
Kerala vs. Thomas (1976), decisions of the Indian Supreme Court have recognized the need
for affirmative action to redress systemic inequality. Even though the constitutional
provisions authorizing affirmative action are written as exceptions to guarantees of equality,
the Court has characterized these provisions as providing instead a right to substantive
equality rather than a simply formal equality.
Sunstein (1994) foreshadowed the potential value to the US of learning from India’s differing
justifications for affirmative action. For Sunstein the key dimensions are income level, rate of
employment, level of education, longevity, crime victimization, and ratio of elected political
representatives to percentage of population. Thus, reverse discrimination claims by whites
affected by affirmative action would disappear. Further, it would not be necessary to prove
discrimination, either contemporaneous discrimination against an individual plaintiff or
historical discrimination against that person’s group, since the purpose of the 14th
Amendment would no longer be interpreted as preventing or remedying discrimination but
rather alleviating systemic social disadvantage.
CONCLUSION
India’s justification of affirmative action (altering systemic inequality) can be seen as well as
in several other countries’ efforts to address the problems of diverse populations. Rather the
programs have been justified in terms similar to the current constitutional discourse in India,
recognizing that the combination of initial socioeconomic disadvantage with the continuing
influence of informal networks would perpetuate a society, thus requiring affirmative action
to counteract these social forces.
The new constitution of the Republic of South Africa takes the Indian approach one step
further. The very concept of equality is defined so that only unfair discrimination is
prohibited. Properly designed affirmative action is thus fair discrimination. The constitution
also explicitly states that ‘to promote the achievement of equality, legislative and other
measures designed to protect or advance persons, or categories of persons, disadvantaged by
unfair discrimination may be taken.

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Affirmative action was created principally because America’s institutions weren’t ready for
diversity. Nearly forty years later, as a society we are no more ready, partly because the
affirmative action Band-Aid allowed us to ignore our inability to address diversity
effectively. Another forty years of affirmative action will also bring only limited progress.
If we are to create communities and organizations that work for diverse populations, we must
look beyond affirmative action. Should we then abolish or minimize affirmative action?
No! Until we are able to modify our communities and organizations to work with the realities
of diversity, affirmative action will be needed to accommodate diversity, even if that
accommodation is to some extent artificial. Remove the Band-Aid, and the policies and
practices that are not grounded in diversity will naturally become active—and that’s not a
good outcome. So, in the short term, we must continue to administer affirmative action. It
will not be easy. Going against the grain can be exhausting. (Building on the Promise of
Diversity: How We Can Move to the Next Level in Our Workplaces, Our Communities, and
Our Society- R. Roosevelt Thomas, Jr)

What we can look at is to - “remodel” organizations and society so that they anticipate and
are prepared for all kinds of diversity. To do this, individuals, organizations, and
communities must develop a diversity management capability—that is, the ability to make
quality decisions in situations that have differences, similarities, and tensions, including those
related to race, gender, and ethnicity.

References

R. Roosevelt Thomas, Jr. (2006). Building on the promise of diversity: how we can move to
the next level in our workplaces, our communities, and our society. USA: AMACOM

Harvard Business Review. (Jan 2002). Managing diversity. Harvard Business School Press

Global Rights: partners for justice report.(2005). Affirmative action: a global perspective

Thomas Boston & Usha Nair-Reichert. Affirmative action: perspectives from the United
States, India and Brazil (Vol. 27, 2003). The Western Journal of Black Studies

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