A recent Indian Supreme Court judgement, Mukesh Kumar & Another v State of Uttarakhand & Others, held that there is no right to affirmative action under Article 16(4) of the Indian Constitution. Reiterating previous findings, the court held that the power to take affirmative action measures under Article 16(4) is merely permissive. This judgment, and the preceding line of cases, are critiqued as being contrary to the Indian Supreme Court’s commitment to substantive equality. While the South African Constitutional Court (SACC) has yet to consider this question, the text of section 9(2) of the South African Constitution (the Constitution) lends itself to a similar interpretation. As argued in the Indian context, such a reading of section 9(2) would be contrary to the SACC’s commitment to substantive equality.
The facts of the Indian Supreme Court case are that the state government of Uttarakhand decided to make appointments without providing a quota for Scheduled Castes and Scheduled Tribes (SCs and STs) (a section of the intended beneficiaries of affirmative action under the Indian Constitution). On challenge, the high court directed the state government to collect data on the underrepresentation of these groups in the public service. From there, the state would have to decide whether and the extent to which it should implement affirmative action or other measures to redress any inadequate representation.
Rejecting this finding, the Indian Supreme Court held that Article 16(4) is an enabling provision (as it uses permissive – and not mandatory – language, ‘Nothing in this article shall prevent’). Accordingly, the high court had erred in directing the state to analyse the underrepresentation of SCs and STs. This is because such an assessment is a precursor to instituting affirmative action. If the state has made a decision not to implement affirmative action, there is no need to undertake an analysis of the representation of these groups. Moreover, the court held that even if evidence was brought to show that there was an underrepresentation of these groups in the public services, a court could not order a state to implement affirmative action
This judgement has been criticised as contrary to the court’s commitment to substantive equality. In its landmark decision in NM Thomas, the Indian Supreme Court held that affirmative action was not a derogation from the general guarantee of the right to equality in Article 16(1) of the Indian Constitution, but a composite part thereof. This is a recognition that, to achieve equality, positive measures have to be taken to advance disadvantaged groups. Accordingly, as Bhatia argues, if affirmative action measures in Article 16(4) are a composite part of the right to equality, treating everyone as equal in cases where they are not equal should at least amount to a breach of Article 16(1).
Similar to the approach in India, the SACC has held that the equality provisions in section 9 of the South African Constitution embrace a substantive notion of equality. According to the SACC, the general equality guarantee in section 9(1) of the Constitution and the affirmative action provision in section 9(2) are ‘complementary’ and ‘mutually reinforcing’ – they contribute to the constitutional goal of achieving equality. However, the SACC has yet to deal with whether the use of the term ‘may’ (permissive language) in section 9(2) of the Constitution necessary precludes the recognition of an obligation to implement affirmative action or other measures to advance and protect disadvantaged groups in South Africa.
In my opinion, a purposive, generous and transformative interpretation of section 9 requires the acknowledgement of a duty to implement affirmative action or other measures. For example, in cases where university admissions treat persons belonging to historically disadvantaged groups the same as a historically privileged group, leading to the hegemony of the privileged groups – the failure to take affirmative action or other measures to redress this disadvantage renders the right to equality nugatory.
Moreover, section 7(2) of the South African Constitution obliges the State to protect, promote and fulfil the rights in the Bill of Rights (BOR). The SACC has held that section 7(2) includes the imposition of positive duties on the state to take ‘deliberate’, ‘reasonable’ and ‘effective’ measures to give effect to the rights in the BOR. In some cases, taking affirmative action will be the most effective tool for promoting and fulfilling the right to equality. In these cases, a duty to take this specific measure should be recognised. Lahiri has made a similar argument in the Indian context.
Overall, if the courts in both jurisdictions take their commitment to substantive equality seriously, they should recognise an obligation to implement these measures where the failure to do so would be equivalent to nullifying their commitment to substantive equality.
Justice is always a difficult goal to be achieved. Mere presence of law does not necessarily guarantee justice. Nomfundo rightly says that a “purposive, generous and transformative interpretation ” of affirmative action policies by courts requires the “acknowledgement of a duty to implement affirmative action or other measures”. Let us keep our fingers crossed.