ABSTRACT
It is a practice with many members of the Indian elite to mechanically and thoughtlessly adopt concepts and terms appropriate to advanced countries with background different from India’s. As part of this, they have adopted vague concepts like “affirmative action”, and along with it jurisprudential concepts like “Suspect Legislation”, “Strict Scrutiny”, “Compelling Governmental Interests”, “Least Restrictive Alternative”, “Narrow Tailoring” etc. The adoption of these concepts has also been influenced by the expectation that they will help reverse the Indian constitutional practice of providing for reservation in employment and education as part of a larger comprehensive package of social justice. This chapter brings out the inappropriateness of the American concept “affirmative action” and explains why the constitutional concept and term “social justice” should be used instead. The chapter brings out the difference between the constitutions and constitutional history of USA and India in respect of deprived classes. It also briefly outlines American and Indian case law in this field and particularly refers to the case of higher education and the Central Educational Institutions (Reservation in Admissions) Act, 2006 and notes the upholding of that Act by the Supreme Court.
