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Benign Preferences: An Indian Decision & the Bakke Case Author(s): Alan M. Katz Source: The American Journal of Comparative Law, Vol. 25, No. 4 (Autumn, 1977), pp. 611-640Published by: American Society of Comparative LawStable URL: http://www.jstor.org/stable/839929Accessed: 15-09-2015 10:35 UTC

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ALAN M. KATZ

Benign Preferences: An Indian Decision & the Bakke Case

INTRODUCTION

In State of Kerala v. Thomas,l the Supreme Court of India recently held that a state does not violate the constitutional guarantee of equality of opportunity in state employment2 when the state promotes members of scheduled castes and scheduled tribes3 who have failed to pass tests required of all other employees for promotion.4

ALAN M. KATZ is a member of the Massachusetts Bar. In 1975-76, Mr. Katz was research associate at the Indian Law Institute, New Delhi, sponsored by the Berkeley Professional Studies Program in India. Appreciation to William J. Rich and Harold A. Katz for their assistance in the preparation of this article is expressed.

1. State of Kerala v. Thomas, 1976 All India Rptr. S. Ct. 490 (1976), decided 19 Sept. 1975.

2. Constitution of India, Art. 16, cl. 1 (1950). Sub-Art. 16(1) is quoted in full, text at n. 22 infra.

3. The Constitution of India, Art. 366(24) defines "scheduled castes" as "such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution." Art. 366(25) defines "scheduled tribes" as "such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution." Arts. 341(1) and 342(1) give the President the power to designate a group as a scheduled caste or scheduled tribe by public notification. Arts. 341(2) and 342(2) give Parliament some power to include or exclude groups from the lists of scheduled castes and scheduled tribes. The courts have no power to rule on the validity of a scheduled caste/scheduled tribe designation by the President or Parliament. Siddappa v. Chandappa, 1968 All India Rptr. S. Ct. 929, 932, 2 S. Ct. J. 560 (1968); Basa- valingappa v. Munichinappa, 1965 All India Rptr. S. Ct. 1269, 2 S. Ct. J. 153 (1968). The courts may determine if a person is a member of a particular scheduled caste or tribe.

The term "scheduled tribe" was first used in the Constitution of India, which was enacted in 1950. The term "scheduled caste" dates from the Gov- ernment of India Act, 1935. Both terms were coined to describe part of what had previously been referred to as "depressed classes." The Indian Legislative Council in 1916 defined "depressed classes" as including: criminal and wan- dering tribes, aboriginal tribes (now scheduled tribes), and untouchables (now scheduled castes). Thus, the former "untouchable" status of Hindus and ex- Hindus is often the criterion for inclusion as a scheduled caste. See also n. 24 infra. 79,995,896 people are members of scheduled castes. 38,015,162 are members of scheduled tribes. Census of India, 1971 Census.

4. For an overview on the subject of the use of law for the economic betterment of backward classes in India, including policies of protective discrimination, see Minorities and the Law (Imam ed. 1972). For additional, but dated, discussion of the courts' construction of this law, see Galanter, "'Protec- tive Discrimination' for Backward Classes in India," 3 J. Indian L. Inst. 39

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The significance for India of the Court's holding in Thomas is that, in distributing benefits such as employment and admission to educational institutions, state action which favors candidates from backward classes5 is permissible under the constitutional rights of equality

(1961); Imam, "Reservation of Seats for Backward Classes in Public Services and Educational Institutions," 8 J. Indian L. Inst. 441 (1966); Radhakrishnan, "Units of Social, Economic, and Educational Backwardness: Caste and the In- dividual," 7 J. Indian L. Inst. 262 (1965); Ghouse, "Judicial Control of Protec- tive Discrimination," 11 J. Indian L. Inst. 371 (1969).

5. The Constitution of India uses the term "backward classes" in sub-arts. 15(4), 16(4) and 29(2), but the term is not defined in the Constitution. For a discussion of some of the difficulties in determining if a community qualifies as a backward class under the Constitution, see Revanker, The Indian Consti- tution-A Case Study of Backward Classes 182-237 (1971). India's First Five Year Plan states that:

The term "backward class" is difficult to define. Backwardness is expressed in lack of adequate opportunity for group and individual self-development, especially in economic life and in matters of health, housing and education. It is measured in terms of low levels of in- come, the extent of illiteracy, and the low standards of life demon- strated by living conditions.

Government of India Planning Commission, First Five Year Plan 634 (1951). The Backward Classes Commission suggested four criteria for class backwardness: low position in the Hindu caste hierarchy, lack of educational advancement, inadequate representation in government service, and inadequate representation in private employment. Report of the Backward Classes Commis- sion 46-49 (1956). However, the government of India rejected the Report. Memorandum of the Government of India on the Report of the Backward Classes Commission. At least one commentator argues that the government reverts to caste as the criterion for backward class status because it lacks the other necessary data. Agrawala, "Protective Discrimination and Backward Classes in India," in Minorities and the Law 202 (Imam ed. 1972); see also n. 24 infra. Scheduled castes and scheduled tribes prima facie come within the term "backward classes." When "backward classes" are defined to include scheduled castes, scheduled tribes, denotified, nomadic, and semi-nomadic tribes, and those with annual incomes falling below certain prescribed limits, over 1/5 of the population qualify as members of backward classes. Govern- ment of India Ministry of Information and Broadcasting, India 1975: A Refer- ence Annual 96 (1975). Courts can review the designation of a group as a backward class. Balaji v. State of Mysore, Supp. 1 India S. Ct. 439, 1963 All India Rptr. S. Ct. 649 (1963).

India has undertaken a wide range of Constitutional, legislative, and executive initiatives to better backward classes. Constitution Arts. 330, 332 and 334 reserve seats for members of scheduled castes and scheduled tribes in the Lok Sabha, the lower house of Parliament, and state Vidhan Sabhas until 1980. Additionally, the government service is experimenting with pre-exam training centers, relaxing criteria, supplementing scores on merit exams, and automatic inclusion of scheduled caste and tribe members on lists submitted for promotion by selection. Demotion of government employees to make positions available for members of backward classes is impermissible. Sudama Prashad v. Divisional Supdt., Western Rly., 1965 All India Rptr. Raj. 109, 15 Indian L. Reports Raj. 108 (1965). The Commissioner for Scheduled Castes and Scheduled Tribes issues an annual report on their status.

For simplicity and consistency, the term "backward classes" will also be used to refer to ethnic, racial or regional groups in the United States which have significantly less education and/or lower economic resources than their proportion in the population would justify.

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before the law and equal protection of the laws.6 Thus India's Supreme Court has reached a decision on one of the most controver- sial and timely constitutional issues now facing the United States, the issue raised but left undecided in DeFunis v. Odegaard,7 now raised again in Bakke v. Regents of University of California.8

The aims of this article are to alert the American legal community to the Thomas decision and, more importantly, to analyze Thomas to determine the extent and nature of its relevance to the Bakke case under the United States Constitution. That India and the United States are the two largest populations with liberal democratic govern- ments,9 that India has a common law heritage, and that significant parts of the Indian Constitution were modeled on the United States Constitution,l? suggest that Thomas might provide an important analogy for the United States Supreme Court in deciding the constitutionality of state preferences for racial and ethnic groups.ll Regard- less of the limits on the use of Thomas as an analogous case for constitutional analysis, the case provides the opportunity to see how another government and its courts deal with state preference as a tool for the betterment of backward groups. Further, the Court's discussion of American law in the Thomas opinions reveals the justices'

6. Constitution of India, Art. 14 (1950): "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Arts. 15-18 elaborate on Art. 14's general guarantee of equality.

7. 416 U.S. 312 (1974). The issue being referred to is whether a state university, in granting preference to black, Chicano, Native American, and Philippine-American applicants for admission, violates the equal protection clause of the 14th Amendment. The Washington Supreme Court upheld the constitutionality of a law school's preferential admissions program. DeFunis v. Odegaard, 82 Wash. 2d 11, 507 P.2d 1169 (Wash. Sup. Ct. 1973), vacated, 416 U.S. 312 (1974).

8. Recently the California Supreme Court held that the preferential admissions program at the University of California, Davis, Medical School violated the equal protection clause. Bakke v. Regents of University of Califor- nia, 18 C.3d 34, 553 P.2d 1152, 132 Cal. Rptr. 680 (1976).

9. The temporary "state of emergency" from 1975 to 1977 did not affect the Thomas decision.

10. For example, the Art. 14 guarantee of equal protection was taken from the U.S. Constitution. Basu, Commentary on the Constitution of India 260 (4th ed. 1961).

11. At least one American commentator recently noted the similarity of the competing arguments in India on the issue of state preferences for backward classes and in the United States on the DeFunis issue. See Greenawalt, "Judicial Scrutiny of 'Benign Racial Preference' in Law School Admissions," 75 Colum. L. Rev. 559 n. 1 (1975).

The term "preferences" will be used as a general term for preferences granted to backward classes-preferences ranging from the use of quotas to excluding all discriminatory criteria from the decision-making process.

12. The Supreme Court of India does not issue an opinion of the Court and label all other opinionrs as concurring or dissenting, in whole, in part, or in result. Instead, the official count is only as to how many justices agree on the outcome and each reader must tally those legal points which received majority support.

613 1977]




views of what principles of American case law should underlie the decision whether a state preference for a backward class is consistent with the constitutional guarantee of equality.

I

The narrow legal issue before the Supreme Court of India in Thomas was the constitutionality of Rule 13AA of the Kerala State and Subordinate Services Rules of 1958,13 and of two orders14 issued under Rule 13AA. Rule 13A15 refers to requirements of passing special and departmental tests to be eligible for promotion in the state service and Rule 13AA states:

Notwithstanding anything contained in these rules, the Gov- ernment may, by order, exempt for a specified period, any member or members, belonging to a Scheduled Caste or Scheduled Tribe, and already in service, from passing the tests referred to in Rule 13 or Rule 13A of the said Rules.16

Thus Rule 13AA allows promotion of members of scheduled castes and tribes who have not passed otherwise required tests.17 Kerala's Rule

13AA, favoring scheduled castes and tribes in employment promotions, was the latest in a series of such actions extending back before the State was created.18 Rule 13AA and order P-2,19 giving members of scheduled castes and tribes a two-year exemption from passing all tests required for promotion, were issued on 13 January 1972. At the end of the two years, Kerala issued order P-620 extending the exemption for a period covering two Public Service Commission tests to give each employee two more chances to pass. In this article, Rule 13AA

and orders P-2 and P-6 will be referred to as the Backward Classes

Exemption.

13. These Rules are the scheme for regulating employment by the State of Kerala.

14. These orders are plaintiff's exhibits 2 and 6 and are referred to as P-2 and P-6 in the justices' opinions. The orders had the same possible constitutional infirmity as rule 13AA so the Court concluded that either all were valid or all invalid.

15. 1976 All India Rptr. S. Ct. at 493. 16. Id. at 494. The other sentence of rule 13AA creates an exception, not

material to the issue in Thomas, for part of the police executive staff. 17. Rule 13AA is not the only relaxation of the test requirement. Rule

13A allows temporary exemption from passing a test when passing is a newly prescribed requirement. Rule 13B exempts pentagenarians from passing tests generally required for promotion.

18. Kerala was formed in November 1956. On 14 June 1956, its predeces- sor, the Travencore-Cochin Government, ordered lower standards on tests for scheduled castes and tribes. From 1958 onward, scheduled castes and tribes were given exemptions from passing tests. See 1976 All India Rptr. S. Ct. at 496.

19. Id. at 494. 20. Id. P-6 states that no further extension will be given.

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The plaintiff, a lower division clerk in the Registration Depart- ment, asked for a declaration that Rule 13AA was unconstitutional and for mandamus compelling the state to forbear from giving effect to orders P-2 and P-6. Promotion to upper division clerk was based on seniority among those lower division clerks who had passed the account test, the Kerala registration test, and the test on the manual of office procedure. Plaintiff passed all three tests before 1972, the year in issue, but he was not among the fifty-one Registration Depart- ment lower division clerks promoted that year. Thirty-four of the promotees were members of scheduled castes or tribes who had more seniority than the plainiff, but had not passed the tests. In 1972 scheduled castes and scheduled tribes constituted 10% of the population of Kerala, while their members held 2% of the gazetted positions in the state service and 7% of the non-gazetted positions.21

Plaintiff argued that the Backward Classes Exemption, by preventing his promotion, violated his right to equality in state

employment guaranteed as a Fundamental Right by Article 16 of the Constitution. Article 16(1), (2) and (4) states:

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the state. (4) Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.22

Art. 16's guarantee of equal opportunity in state employment is a specific application of Art. 14, the Equality-Equal Protection Article.23 Sub-art. 16(1), the Equality of Opportunity Clause, is the affirma- tively phrased guarantee of equality of opportunity in government

21. Id. at 501. "Gazetted" means that publication of the name of the ap- pointee in the official gazette is necessary before the appointment is final. The justices' opinions did not mention the percentage of Registration Department employees or upper division clerks who were members of scheduled castes and tribes.

22. Constitution of India, Art. 16. The Indian Constitution contains twelve parts. The parts discussed in this article are Part III, Fundamental Rights; Part IV, Directive Principles of State Policy; and Part XVI, Special Provisions Relating to Certain Classes. The opinions in Thomas discussed the relationship among these parts, an important issue in Indian constitutional law. See also n. 57 infra.

23. 1976 All India Rptr. S. Ct. at 536, 546; Mohammed Shuji Ali v. Union of India, 3 S. Ct. Cas. 76, 102 (1975); State of Jammu and Kashmir v. Triloki Nath Khosa, 1 India S. Ct. 371, 383, 1 S. Ct. Cas. 19, 1974 All India Rptr. S. Ct. 1 (1974). For the full text of Art. 14, see n. 5 supra.

1977] 615




service. The issue under Sub-art. 16(1) is whether plaintiff was denied equality of opportunity when he was not promoted to upper division clerk because of favored treatment given to members of scheduled castes and tribes. Sub-art. 16(2), the Anti-Discrimination Clause, is a prohibition of discrimination on grounds including race, religion or caste.24 Sub-art. 16(4), the Reservation Clause, states that neither the guarantee of equality of opportunity nor the prohibition against discrimination on the basis of caste shall prevent the state from reserving government jobs for backward classes of citizens that are inade- quately represented in the state service. Thus issues analyzed by the Indian Supreme Court, and important to the determination of the relevance of Thomas for the United States Supreme Court, include whether Sub-art. 16(2) or 16(4) is dispositive of the case and, if not, then what is the proper relationship among the above-mentioned clauses of Art. 16.

Arts. 46 and 335 of the Constitution of India also deal with the position of backward classes as state employees.25 Art. 46, a Directive Principle to states in formulating policy, requires that:

The State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of ex- ploitation.

Art. 335 provides: The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration,

24. The caste system which is at issue in Thomas is a basic feature of In- dia's social structure and is well over 2000 years old. "A caste system is one whereby a society is divided up into a number of self-contained and com- pletely segregated units (castes), the mutual relations between which are ritu- ally determined in a graded scale." Hutton, Caste in India 50 (4th ed. 1963). The three basic characteristics of the Indian caste system are the opposition of pure and impure, hierachy, and specialization, Lannoy, The Speaking Tree: A Study of Indian Culture and Society 137-57 (1971). In Hindu India, there are four castes, with myriad subdivisions. Also living in India but outside the caste system are subservient Hindu outcasts (untouchables), religious minority groups, tribal societies, and semi-tribal communities. The Constitu- tion of India, Art. 17, outlaws untouchability. One result of the caste system has been that lower castes and ex-untouchables suffer from economic and social deprivation.

25. The Constitution of India with its 3915 articles and nine schedules is a more comprehensive document than the Constitution of the United States. The Constitution creates policy on subjects that are regulated by statutory and case law in the United States, see e.g., Art. 24, prohibition of employment of children in hazardous employment; Art. 280, President shall appoint a Fi- nance Commission; Art. 311 dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or a state; Art. 320, functions of public service commissions; and Art. 364, special provisions as to major ports aid airports.

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in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

Neither the plaintiff nor the defendants argued that Arts. 46 and 335 were decisive of whether the Backward Classes Exemption violated the equality guarantee.

The Kerala High Court26 upheld the plaintiff's claim that Rule 13AA, orders P-2 and P-6, and the consequent promotion of 34 less qualified members of backward classes, rather than the plaintiff, violated Art. 16.27 The High Court found that Kerala's action was not a reservation and therefore did not fall within the Reservation Clause [Art. 16(4)]. As a result, the State's action was subject to the

equality of opportunity guarantee of Sub-art. 16(1). The Kerala preference based on caste and tribe was then found to violate Sub- art. 16(1) under the rationality test for equality and because the pref- ence as implemented promoted more than 50% preferred applicants, thus putting non-preferred applicants at such a severe disadvantage as to deny equality of opportunity.28

II

The Supreme Court of India decided by a 5-2 vote, with seven separate opinions, that Kerala's preference in promotion for state employees who were members of scheduled castes and tribes did not violate Art. 16 of the Indian Constitution. Of special importance for this article, however, is the degree of judicial concurrence that the equality of opportunity guarantee of Sub-art. 16(1), a specific application of the Art. 14 equality-equal protection rights, permits preferences based on membership in a scheduled caste or tribe. This is the question which parallels the yet to be decided Bakke case in the United States. The Supreme Court of India held 4 to 3 that the Kerala preference was not a violation of the right of equality of opportunity of a state employee who was denied promotion because he

26. India basically has a single, hierarchical court system with state courts and a Union Supreme Court. The High Court is the highest state court and generally makes a de novo finding on the facts.

27. India L. Reports Kerala 549 (1974). 28. The Supreme Court previously held that reservation of more than 50%

violated equality. Balaji v. State of Mysore, Supp. 1 India S. Ct. 439, 1963 All India Rptr. S. Ct. 649 (1963). The Balaji case involved reservation under sub-art. 15(4) of seats in educational institutions, but the Court said that the decision was equally applicable for sub-art. 16(4). When members of preferred backward classes are unavailable to fill vaclancies in a given year, the government "carries forward" such vacancies until a year when sufficient numbers from the preferred classes apply. However, a Supreme Court case has held that use of a carry-forward rule that resulted in reserving fifty-four of one hundred seats for backward classes in a given year violated equality. Devadasan v. Union of India, 4 India S. Ct. 680, 1974 All India Rptr. S. Ct. 179 (1964).

1977] 617




was not a member of a preferred backward class.29 On this issue Justice Beg disagreed with the majority, voting to uphold the preference under the Reservation Clause, which has no specific parallel in the United States Constitution.30

The 4-3 split was not based on disagreement as to the test to be used in determining the extent of the equality right. All of the justices agreed that a classification which has a reasonable basis does not violate equality. Most of the justices made no attempt to explain the mechanics of applying the reasonable basis test.30a

None of the seven justices concerned himself more than briefly with the question of how rigorous the reasonable basis test must be. The majority did not suggest that the reasonable basis test applied to classifications based on caste and tribal membership as indicative of backwardness is more rigorous than the reasonable basis test for

equality applied to any legislative or executive classification.31 This absence of discussion implies that the Indian Supreme Court's approach is to make a case-by-case determination of whether particular types of classifications are reasonable and so not violative of equality. The basis of the dissenting justices' conclusion that Kerala violated the respondent's right to equality of opportunity was that classification based on membership in a scheduled caste or tribe, at least for the purpose of granting preferences, is inherently unreasonable and invalid. The Indian approach is not to develop a rigid definition of "reasonable basis" so that the test for constitutional equality can be

applied almost mechanically.

Analysis of the four majority opinions reveals the justices' logic in finding a reasonable basis for Kerala's classification. The two im-

portant questions for analysis are, how did each justice characterize Kerala's classification and what did he believe to be the demands of constitutional equality? Chief Justice Ray stated that a classification

29. In the remainder of this article, the term "majority" of the Indian Su- preme Court in Thomas will mean this four-justice majority that held the Backward Classes Exemption not violative of equality of opportunity.

30. Thomas, supra n. 1 at 524. In the Supreme Court, the Advocate Gen- eral of Kerala conceded that the State's section was not a reservation and was not within sub-art. 16(4).

30a. See Part III B infra for further discussion of the reasonable basis test. 31. However the court will apply strict scrutiny to prevent a state from

invoking favoritism under the cloak of equality. 1976 All India Rptr. S. Ct. at 552 (J. Fazal Ali concurring). After stating that the Equality of Opportu- nity and Anti-Discrimination Clauses will prevent politically powerful castes from taking advantage of "backwardness," Justice Krishna Iyer said,

Not all caste backwardness is recognized in this formula (reasonable basis test). To do so is subversive of both Art. 16(1) and (2). The social disparity must be so grim and substantial as to serve as a foundation for benign discrimination. ... If the real basis of classification is caste, masked as backward class, the Court must strike at such communal manipulation.

1976 All India Rptr. S. Ct. at 537, 532.

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has a reasonable basis if the classification is founded on a substantial difference and embraces all and omits none who naturally fall within that category in light of the purpose of the law.32 However, in applying this formula, the Chief Justice made little effort to determine if the scheduled caste/scheduled tribe classification embraced all and omitted none who would benefit from a state employment preference created to benefit backward classes. Instead he found that the preference did not violate equality because it sought only "adequate representation" and did not go beyond that standard.33 Justice Krishna Iyer wrote that a classification for advancement in state service which is consistent with administrative efficiency is reasonable.34 Subject to this broad efficiency criterion, a sensitive interpretation of equality of opportunity does not recognize a critical distinction between distribution according to "merit" of individuals and distribution according to "need" of depressed groups.35 The Constitution itself sanctions classification based on backwardness and demarcates scheduled castes and tribes based on backwardness and so suggests the reasonableness of Kerala's classification.36 According to Justice Fazal Ali, equality forbids hostile discrimination.37 The doctrine of reasonable classification guarantees that equality will not just be for the advanced and educated sections.38 The only way that Art. 14 and equality can be achieved is through boosting the backward classes by giving them concessions and facilities and removing handicaps.39 For Justice Mathew a reasonable basis for a classification requires "relevant differences" between classes, i.e., distinctions having a rational relation to the end sought.40 The state can adopt any measure to ensure adequate representation of scheduled castes and tribes so long as it does not dispense with the necessary efficiency of administration nor classify solely on grounds such as race or caste, prohibited by the Anti-Discrimination Clause.41 In interpreting the constitutional guarantee of equality, courts should require proportionate equality.42

The opinions upholding the validity of the Backward Classes Exemption under the reasonable basis test for the sub-art. 16(1) right to equality of opportunity share some common elements. All characterized the scheduled caste/scheduled tribe classification as a preference based on backwardness and, therefore, as not conflicting with

32. 1976 All India Rptr. S. Ct. at 497, 499. 33. Id. at 500. 34. Id. at 537. 35. See id. at 528. 36. Id. at 532-33, 536. 37. Id. at 546. 38. Id. 39. Id. 40. Id. at 513, 519. 41. Id. at 519. 42. Id. at 517-18.

1977] 619




the constitutional prohibition of discrimination on grounds of race or caste.43 After finding sufficient evidence of the backwardness of scheduled castes and tribes, the justices did not concern themselves with the questions of whether other equally backward communities were not receiving a preference or whether the individual members of scheduled castes and tribes who were benefitting from the preference were themselves underprivileged. The justices agreed that a state need not use uniform standards in distributing a benefit if backward classes will not be able to compete successfully. Preferences for backward classes are permissible because the constitutional goal is to achieve "actual" equality.

Important here is a determination of what elements of the factual situation were indispensable to the Supreme Court's approving the Backward Classes Exemption. The Court's evaluation of Kerala's factual situation will be discussed in terms of the requirements of constitutional equality as to the beneficiary class of a state preference, the form of the preference, and the impact on the state institution

granting the preference. The class benefiting from the state preference must be severely

backward, although the Court did not delineate specific criteria for backwardness. The state's purpose in granting a preference cannot be solely to benefit a particular religion, race, caste or sex. However a class based on backwardness can be defined in racial, caste or any other terms. The preference need not be extended to all backward classes. The beneficiary class can be more or less inclusive than the list of scheduled castes and tribes created by Presidential notification.

Further, if the preferred class is backward, the individual beneficiaries of the preference need not all be backward. The form of the preference is unimportant in constitutional adjudication. Quotas, relaxed

standards, and weighing of caste diversity and individual hardship are equally constitutional. The justices who voted to uphold Kerala's

preference, which was a temporary exemption, also would have voted

to uphold a permanent exemption. The Court intends to strike down

preferences that provide more than adequate representation44 or re-

serve more than 50% of the openings in a given year, but violation of these limits will be determined by looking at the overall employment situation in the state service.

43. Classification by caste designation is constitutionally permissible if caste is a designation used because it is indicative of social and educational backwardness. P. Rajendran v. State of Madras, 2 S. Ct. J. 568; 1968 All India Rptr. S. Ct. 1012 (1968).

44. The facts in Thomas did not compel the justices to grapple with the issue of what constitutes "adequate representation." The only criterion that one could infer from the justices' opinions is that representation is adequate if it is proportionate to the group's percentage in the population.

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III

We can now proceed to inquire to what extent the Thomas case resolved issues present in the American Bakke case, and thereafter to compare the Indian and American approaches to equal protection.

A. Is Thomas Analogous to Bakke?

The Bakke issue is: do state-created preferences for some racial and ethnic groups in admission to educational institutions violate the 14th Amendment equal protection rights of a person who fails to receive the state benefit solely because of the preference granted to others. The facts of Thomas, which include state action, a preference in employment, and a plaintiff who failed to get the state benefit solely because others received preferred treatment, parallel the 14th Amendment issue. Two factual elements of the 14th Amendment issue are more problematic: first, whether scheduled castes and scheduled tribes in the Indian context are analogous to racial and ethnic groups in the American context and, second, whether the preference granted by Kerala is analogous in form to any preferences granted in the United States.

In this paragraph only, the analysis assumes that classification criteria prohibited by the Anti-Discrimination Clause are analogous to classification forming a suspect class under 14th Amendment equal protection. The majority view of the Indian Supreme Court in Thomas was that scheduled castes and tribes are not castes or races as these terms are used in the Anti-Discrimination Clause. Therefore Kerala's promotion preference did not violate the Anti-Discrimina- tion Clause. Under American equal protection theory, racial or ethnic classification generally creates a suspect class. Because the Indian Su- preme Court concluded that scheduled castes and tribes are not castes or races, the scheduled caste/scheduled tribes classification in Thomas is not comparable to a state preference in the United States for a racial or ethnic group. However this difference between the characterization of the beneficiary classes serves to distinguish Thomas only if the characterization of scheduled castes as not being castes was a necessary basis for the Indian Supreme Court's decision. As further analysis45 reveals, the Court would have upheld the Backward Classes Exemption even if the beneficiary class of the preference was classi- fied on the basis of caste, race or sex. Generally, any state promotion preference not rationally related to the merit of the promotees violates equality even if the basis of classification is not prohibited by the Anti-Discrimination Clause. The Indian Supreme Court has allowed one exception to this proposition: a state promotion preference in favor of members of a severely backward class that is under-

45. See text at n. 54 infra.

621 1977]




represented in the state service does not violate Art. 14 or 16 even if the beneficiary class is a racial or caste group.46 Therefore, the analogy between Thomas and Bakke is valid.

Determining whether the facts of Thomas are analogous to a particular Bakke-type case which might be litigated in the United States requires placing the Backward Classes Exemption on a spectrum of preference options. Kerala's exemption did not attempt to make promotion dependent on competence by eliminating subtle forms of discrimination. Kerala intended scheduled castes and tribes to achieve adequate representation at all levels of the state service, largely regardless of the competence of individuals.47 However the State did not go so far as to create quotas. The Kerala preference is best described as temporarily exempting members of scheduled castes and tribes from all requirements that had prevented scheduled castes and tribes from achieving parity in the state service. The state policy in granting the preference was based on a belief that scheduled castes and tribes were unable to compete successfully in the tests required for promotion because of the educational and economic backwardness of those groups. A comparable form of preference for admission to a state law school in the United States would: (1) admit members of preferred classes who qualified under the generally applied standards,48 (2) totally ignore LSAT scores and undergraduate

46. Chief Justice Ray says that sub-art. 16(2) permits an additional preference in the All India Service, a preference for underrepresented states.

The Supreme Court of India long ago held that, when a state creates quotas for all available positions in the state service, the quotas for backward classes will be allowed as reservations under the Reservation Clause, but the other

quotas will be struck down as violative of Art. 16 equality. Venkataramana v. State of Madras, 1951 All India Rptr. S. Ct. 229, 14 S. Ct. J. 318 (1951), accord, State of Jammu and Kashmir v. Triloki Nath Khosa, 1 India S. Ct. 371, 1 S. Ct. Cas. 19, 1974 All India Rptr. S. Ct. 1 (1974). Another case used sub-art. 29(2) to strike down a state-sponsored quota system for admission to engi- neering and medical schools, but was subsequently reversed on the quotas for backward classes by the Constitution (First Amendment) Act, 1951, adding sub-art. 15(4) to the Constitution. State of Madras v. Champakam, 1951 India S. Ct. 525, 1951 All India Rptr. S. Ct. 226 (1951). Justice Khanna's dissent

argued that the Court's decision in Thomas overruled the seven-judge bench's unanimous decision in Champakam that it is not permissible to make a reservation of seats on the ground of backwardness. 1976 All India Rptr. S. Ct. at 511.

47. From an American perspective, promotion based on seniority without any reference to the skill of the candidate seems to make no effort to actually compare the merit of candidates. However, in analyzing India this conclusion must be modified because seniority is often presumed to be equivalent to merit. So, for example, when in 1973 Prime Minister Gandhi elevated Justice Ray, the fourth most senior Supreme Court justice to the Chief Justiceship, the legal community was in an uproar and the three more senior justices re- signed.

48. Apparently no scheduled caste/scheduled tribe lower division clerks had passed the three tests generally required for promotion to upper division clerk. Therefore, the justices' opinions do not discuss who would be promoted

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grades for members of the preferred class who would not be admitted without the benefit of a preference,49 and (3) not take into account the LSAT scores and undergraduate grades of members of non- preferred classes when comparing these applicants with members of preferred classes who would not be admitted without a preference. For an American legal analysis, the important point about the form of Kerala's preference is that the preference seeks to make scheduled castes and scheduled tribes able to compete successfully without reserving slots, but also without applying strict competence criteria.

Having examined the extent of the factual parallels between the Thomas case and a Bakke situation, the analysis shifts to whether the Equality of Opportunity Clause is equivalent to the 14th Amendment Equal Protection Clause. Two potential differences will be discussed: first, the presence in the Constitution of India of the Anti-Discrimina- tion and Reservation Clauses of Art. 16, Art. 335, and Art. 46 which have some influence on the meaning of the Equality of Opportunity Clause and, second, the wording of the protected right, "equality of opportunity" as distinguished from "equal protection of the laws."

Art. 335 of the Indian Constitution says specifically that the state, in taking the claims of scheduled castes and tribes into consideration in making appointments to the state service, must act consistently with the maintenance of efficient administration Regardless, the Su- preme Court concluded that the Equality of Opportunity Clause itself implies a maintenance of efficiency limitation.50 Some justices said that the state need not maintain the highest possible level of efficiency in the state service, but that the state cannot waive the minimum requirements necessary for maintaining efficiency. Other justices seemed prepared to forbid the state from granting preferences that would reduce efficiency,51 but Justice Krishna Iyer, expressing this

in a competition between a scheduled caste member with five years seniority who had passed the tests and a scheduled caste member with ten years seniority who had not passed the tests. This article assumes that the applicant with less seniority would be promoted. Reservations are only constitutional if in practice they work in favor of backward classes. Raghuramulu v. State of Andhra Pradesh, 1957 India L. Reports A.P. 772, 1958 All India L. Rptr. A.P. 129 (1957). See also V. V. Giri v. SuriDora, 1959 All India L. Rptr. S. Ct. 1318, 1960 S. Ct. J. 1149, 1 India S. Ct. 426 (1960).

49. This article assumes that, but for the reliance of law school admission committees on LSAT scores and undergraduate grades, members of backward classes would compete successfully in the law school admission process.

50. 1976 All India Rptr. S. Ct. at 498 (Ray, C.J.), 506 (Khanna, J.), 526- 27 (Krishna Iyer, J.), 551, 555 (Fazal Ali, J.).

51. Justice Khanna, dissenting, suggested that the minimum qualifications for promotion, including the passing of tests, represent the state's view of the minimum requirements for maintaining administrative efficiency. Id. at 506. In contrast, Justice Krishna Iyer simply assumed that the state would take administrative efficiency into consideration in implementing any otherwise constitutional promotion preference. Id. at 526.

1977] 623




view, warned that "(e)fficiency means, in terms of good government, not marks in examination only, but responsible and responsive service to the people."52 The view of at least six of the seven Indian Supreme Court justices in Thomas was that Art. 335 did not expand the scope of preferences for members of scheduled castes and tribes permissible under the Equality of Opportunity Clause.53

The characterization of the beneficiaries of Kerala's preference as a caste or a non-caste class under the Anti-Discrimination Clause seems to have largely depended on the justice's view of whether the Backward Classes Exemption violated the Equality of Opportunity Clause.54 This conclusion as to the bases of the justices' decisions on the Anti-Discrimination Clause issue is supported by their uniformly brief discussions of this clause. For the Supreme Court of India, the Anti-Discrimination Clause serves largely as a guideline, not a limit, for interpreting the general right to equality that is embodied in the

Equality of Opportunity Clause.

Six of the justices found Rule 13AA not to be a reservation within the state's power under the Reservation Clause.55 The justices split 4-3 on the question of whether this clause, allowing reservation of

posts for any backward class, is an exemption to the Equality of Op- portunity Clause. The dissenting justices believed that the Reserva- tion Clause creates the sole exception to the requirement of equality of opportunity in state employment.56 The majority disagreed, saying that the Reservation Clause is an explanation of the Equality of

Opportunity Clause. Thus for the majority, the Reservation Clause reinforces the conclusion that a state promotion preference for scheduled caste and scheduled tribe employees does not deny equality of

opportunity to non-preferred employees. Thus an individual justice's conclusion that the Reservation Clause is an exception to or explanation of the Equality of Opportunity Clause was based on the justice's interpretation of sub-art. 16(1) equality of opportunity as either pro- hibiting or permitting preferences for scheduled castes and tribes.

52. Id. at 534, 536. 53. Justice Krishna Iyer differed with this view believing instead that the

specificity of Art. 335 supported the conclusion that state employment preferences do not violate equality of opportunity. Id. at 535.

54. Justice Krishna Iyer decided that scheduled castes and scheduled tribes are not castes, but are an amalgam of castes, races, groups, tribes, communities or parts thereof found to be in need of massive state aid. Id. at 535. Justice Fazal Ali similarly concluded that scheduled castes and tribes were not within clause 16 (2) because they constituted a class. Id. at 549.

55. Id. at 498 (Ray, C.J.), 506-07 (Khanna, J.), 512 (Mathew, J.), 528, 536 (Krishna Iyer, J.), 543 (Gupta, J.), 555 (Fazal Ali, J.).

56. Before the Thomas case, most commentators assumed this to be the correct view. See, e.g., Ramachandran, "Untouchability and Protective Dis- crimination," in Minorities and the Law 192 (1972); Agrawala, "Protective Dis- crimination and Backward Classes in India," in id. at 201.

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Art. 46 of the Constitution directs the states to promote with special care the interests of the scheduled castes and tribes. The importance to be given to the Directive Principles of State Policy in judicial interpretations of Fundamental Rights is a hotly debated and somewhat unresolved issue in Indian Constitutional Law.57 Chief Justice Ray and Justice Mathew attached little importance to Art. 46 in reaching the conclusion that the Backward Classes Exemption is valid under the Equality of Opportunity Clause. However Justice Fazal Ali interpreted this clause with the help of Art. 46 and Justice Krishna Iyer gave emphatic expression to Art. 46 in his decision of the constitutional issue. Justice Gupta's dissent58 should be interpreted as reinforcing the conclusion that the Indian Supreme Court, in refusing to strike down the Backward Classes Exemption as a denial of equality of opportunity, relied somewhat on Art. 46. However, no justice in the majority stated or implied that the Equality of Oppor- tunity Clause would not permit a preference in favor of scheduled castes and tribes but for Art. 46.

Thomas held that the equality right does not prevent state preferences in favor of backward races. Justices Fazal Ali and Krishna Iyer can be described as relying on the harmonious construction of the Equality of Opportunity Clause and Art. 46 as providing a substantial justification for the decision. The Court did not find sub-art. 16(4) or Arts. 46 and 335 necessary for this decision, but the Court inevit- ably was influenced by the use in the Indian Constitution itself of the classification "scheduled castes and scheduled tribes" and by the Reservation Clause and Art. 335 which specifically deal with the position of backward classes in government service. The United States Constitution must be distinguished because it does not use racial or ethnic classifications nor does it emphasize a national purpose of im- proving the economic conditions of backward classes.59 The Indian Constitution as a whole suggests that preferences for scheduled castes and tribes would be permissible, but the United States Constitution's overall tenor does not imply that racial preferences are acceptable or

57. Justice Gupta argued strenuously that to view Art. 46 as justifying the Backward Classes Exemption would require justifying a tax exemption for scheduled castes and scheduled tribes which was struck down in State of Ra- jasthan v. Thakur Pratap Singh, 1960 All India Rptr. S. Ct. 1208, 1 India S. Ct. 222 (1961). Id. at 542. Art. 37 says that the Directive Principles are not enforceable by the courts, but that the states have the duty to apply these principles. However, the Court ruled in Keshavanand Bharati v. State of Ker- ala, 1973 All India Rptr. S. Ct. 1461, 4 S. Ct. Cas. 225 (1973), that the Directive Principles of Part IV as a whole should be read into the individual Funda- mental Rights of Part III.

58. See n. 57 supra. 59. U.S. Const. art. VI [3] says: ". . no religious test shall be required

as a qualification to any office or public trust under the United States." The preamble to the Constitution of the United States mandates that the government "promote the general welfare."

1977] 625




unacceptable. However, an American court trying to decide the extent to which Thomas is analogous to Bakke should not overemphasize this difference in constitutional context of the Equality of Opportunity Clause and the 14th Amendment. First, as has been stated, Thomas held that the Equality of Opportunity Clause itself permitted the chal-

lenged state employment preference. In its first application of the

equality right to protective discrimination, the Court naturally tried to bolster its decision with all potentially supporting constitutional

language. Second, the more extensive Indian Constitution includes statements of government policy of a type that would be found in acts of Congress in the United States. Some articles of the Indian Constitution can be amended simply by Parliamentary enactment without approval of the states.60 As a consequence, some provisions of the Indian Constitution are enforced more strictly by Indian courts than are others.61

Unlike the 14th Amendment, India's Art. 14 guarantees both

"equal protection of the laws" and "equality before the law." "Equal- ity before the law" is an expression of the English common law whereas "equal protection of the laws" was drawn from the Constitu- tion of the United States.62 The right to "equality before the law" is found in most written constitutions other than that of the United States.63 Generally, attention should be paid to every clause and word of a constitution.64 This suggests that "equality before the law" and "equal protection of the laws" in Art. 14 should not be interpreted as synonymous. However, the Supreme Court of India has not made

any substantive application of the guarantee of equality before the law as distinct from the application of the guarantee of equal protection.65 In fact, the doctrine of classification laid down by the United States Supreme Court has been adopted by the Indian Supreme Court as the test of Art. 14 equality, the combined guarantee of equality before the law and equal protection.66 In interpreting the Equality- Equal Protection Article a court is permitted to refer to decisions of

60. Constitution of India, Art. 368. 61. See, e.g. n. 25 supra. 62. Basu, supra n. 10 at 260. 63. Constitution of Burma (1948) ? 13; Constitution of Czechoslovakia,

Art. 1(i); Constitution of Eire (1937) ? 40(1); Constitution of Japan, Art. 14; Constitution of Switzerland, Art. 4; Constitution of West Germany (1948) Art. 3 (i); and Constitution of Yugoslavia, Art. 4.

The Universal Declaration of Human Rights, Art. 7, and the International Covenant on Civil & Political Rights (1966), Art. 26, state rights to both equality before the law and equal protection of the laws.

64. Marbury v. Madison, 1 Cr. 137, 174 (1803); United States v. S.E. Under- writers Assn., 322 U.S. 533 (1944).

65. Basu, supra n. 10 at 260 n. 16. 66. Seervai, Constitutional Law of India: A Critical Commentary 196-97

(1967).

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American courts on the equal protection clause of the American Con- stitution.67

Underlying the majority's decision that a state preference in favor of some backward cases is consistent with the guarantee of equality for all persons was the view that state measures to achieve actual

equality further the purpose of the equality guarantee.68 Although the equality "of opportunity" language might be interpreted as sug- gesting the actual equality emphasis, the Indian Supreme Court views the words "of opportunity" as simply the appropriate description of equality in state employment and not as changing the meaning of

equality.69 Chief Justice Ray said that preferential treatment for scheduled castes and tribes means equality of opportunity for all- the constitutional goal.70 Justice Krishna Iyer argued that equality of opportunity only makes sense if there is a strategy whereby depressed groups can claim a fair share.71 Justice Mathew said that each member of the community, no matter of what social position, should have equal opportunity to use his endowments.72 The conclusion that constitutionally guaranteed equality means something more than a narrow formalistic equality which requires the state to apply uniform standards to dissimilarly situated groups underlies the Su- preme Court's decision in Kerala v. Thomas. This conclusion was not based on any language that differentiates Art. 14 from the 14th Amend- ment. The decision that actual equality is the goal of Art. 14 and 16

interprets the intention of the framers of the Constitution in light of changed social conditions. Understanding the intention of the framers of the 14th Amendment in light of changed conditions will also be crucial for the United States Supreme Court.73

B. A Comparison of Approaches to Benign Racial Classification.

A functional description of the Indian Court's approach will

67. State of Uttar Pradesh v. Deoman, 1960 All India Rptr. S. Ct. 1125, 1131-32, 1960 India Cr. L.J. 1504 (1960). For a discussion of the similarity between United States Supreme Court decisions under the equal protection clause and early decisions of the Indian Supreme Court applying the equality guarantee, see Douglas, From Marshall to Mukherjea: Studies in American and Indian Constitutional Law 308-31 (1956).

68. Justice Beg expressed the contrary view that sub-art. 16(1) was not designed to produce actual equality. 1976 All India Rptr. S. Ct. at 522.

69. It has been argued that equality of opportunity is the moral foundation of 14th Amendment equal protection. Lavinsky, "DeFunis v. Odegaard: The 'Non-Decision' With a Message," 75 Colum. L. Rev. 520 (1975).

70. 1976 All India Rptr. S. Ct. at 501. 71. Id. at 536. 72. Id. at 515-16. 73. Some nineteenth century cases are said to show that the purpose of

the 14th Amendment was to prevent discrimination against black people. See Strauder v. W. Va., 100 U.S. 303, 306-07 (1880); Slaughter House Cases, 83 U.S. (16 Wall.) 36, 81 (1872). However more recent cases view all racial classifications as suspect under the fourteenth amendment. See Loving v. Va., 388 U.S. 1, 11 (1967); Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

627 1977]




necessarily imply rigidity in what has already been described as a flexible process. The description is largely the product of inductive

reasoning which begins with the Court's result and explains that result in terms of the Court's reasonable basis test for equality.

A classification does not violate the Art. 14 and 16 equality guarantee if the classification has a reasonable basis. A classification has a reasonable basis if it is founded on substantial differences and is rational in relation to the purpose of the law. When the challenged regulation grants a preference to a class of candidates for positions in the state service or state schools, applying the reasonable basis test is a two-step process. First, the court determines the purpose of the state in granting the preference. The purpose will either be to prefer applicants based on competence or to create a preferred class for other reasons. When the aim of the preference is other than measur-

ing the competence of candidates, the Court determines whether the aim is to achieve equality or to create a favored group that is either consistent with or inimical to the purpose of the constitutional right to equality. A classification among candidates for state service or schools that does not seek to differentiate the more competent candidates nor to achieve equality will be viewed by the courts as not

having a reasonable basis.

Having determined that the purpose of Kerala's Rule 13AA classification is to further equality, the Court proceeded with the second

step of the reasonable basis test, determining whether the classification bears a rational relation to the purpose for which it is made. A classification is rationally related to its purpose when it is a just means of achieving the purpose and the classification is based on differences that are substantial in light of that purpose. A classification based

solely on race or caste does not satisfy this "rationally related" re-

quirement. A preference designed to achieve equality is just, and based on substantial differences, only if the beneficiary class is both

severely backward and under-represented in the service.

Equality is furthered both by state standards which give each individual the same opportunity to use his talents and by the use of uniform standards for all individuals. In resolving these conflicting

aspects of equality, the Indian Supreme Court is slowly defining the circumstances under which a state can prefer a class of candidates for the purpose of creating equality of opportunity for these candidates. More than 20% of the people in India fall within classes that

can be preferred for state employment, promotion, and admission to

educational institutions without violating the Constitution.74 The

states are given great freedom in choosing the form of the preference.

74. Although discrimination against women in India is acknowledged by the Government, the Government has not created state preferences in their favor. For an introduction to the status of women in India and the Govern-

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The Indian Supreme Court's approach for determining whether a state-sponsored preference violates the equality right can be com- pared with the approaches of a) Justice Douglas' dissenting opinion in DeFunis; b) those who would use the compelling state interest test because race is a suspect class; c) those who would use the rational basis test when a racial preference is for benign purposes; d) and one of the proposed intermediate standards between the minimal rational basis test and the rigorous compelling state interest test.

In DeFunis, Justice Douglas said that when a state does not apply uniform standards in choosing among law school applicants, but instead uses a racial classification in determining what standards to apply, the racial classification violates equal protection unless the application of different standards is racially neutral.75 He did not explicitly discuss whether state use of uniform standards that do not involve an explicitly racial classification and are not intended to exclude any racial group is unconstitutional racial discrimination.76 A court would determine whether the equal protection right of a member of the non-beneficiary racial class is being violated by looking at the state's purpose in making the racial classification.77 Justice Doug- las concluded that a new trial was needed in DeFunis to determine if the state's separate classification of Blacks, Chicanos, Native Ameri- cans and Philippine-Americans was racially neutral, i.e., merely to rectify cultural and racial biases in the LSAT and undergraduate grades.78 Justice Douglas' approach would have produced the same result reached in Kerala v. Thomas, because the Kerala High Court did not make a finding whether the purpose of Kerala's Rule 13AA was to insure that all candidates compete based on individual "merit"

ment's efforts to improve the position of women, see Central Institute of Re- search and Training in Public Cooperation, Women in India (1975).

75. 416 U.S. at 334. 76. Justice Douglas stated that the LSAT measures cultural factors, but

did not discuss whether a state law school that uses the LSAT in evaluating black applicants violates equal protection. Id. Thus Justice Douglas does not suggest a resolution of the issue of whether a uniform but racially non-neutral standard violates equal protection. He did indicate that admitting students by lottery is a uniform and racially-neutral standard and so permissible under the equal protection clause. Id. at 344.

77. Justice Douglas said that any state-sponsored preference to one race is invidious and cannot even be justified by a compelling state interest. 416 U.S. at 343-44. It has been argued that Justice Douglas' position is close to the position that a racial classification for distribution of important state benefits is per se invalid. See Greenawalt, supra n. 11 at 565-66. However, dis- tilling from Justice Douglas' opinion a test for equal protection reveals that it is a "preference" and not a racial classification that is per se invalid. Jus- tice Douglas states that the Law School Admissions Committee properly sep- arated minority applicants. 416 U.S. at 334. For Justice Douglas, the purpose for making a racial classification and not the mere racial classification is the key to the constitutional determination.

78. 416 U.S. at 326, 336.

1977] 629




or to promote members of backward classes regardless of their competence in comparison to other candidates.79 For Justice Douglas, constitutionality turns on the state's purpose in choosing the particular means of helping a backward class in competition for jobs or admission to school.80 For the Supreme Court of India, constitutionality turns on the state's purpose in helping a class and the actual backwardness of the class.

The most common approach of the United States Supreme Court in determining whether a classification violates the Equal Protection Clause is to require that the state justify its classification under either the rational basis test or the strict scrutiny/compelling state interest test. Generally a classification need only have a "rational basis" to be valid. The rational basis test is a minimal standard which is based on the notion that courts should generally defer to decisions of the

legislature and executive as to classification. But the Court uses the

compelling state interest test to impose a rigorous burden on the state when classifications produce discrimination against suspect classes8s such as racial minorities or aliens, groups often characterized by their lack of political influence and their history of victimization by discrimination.82 Thus the rational basis test is basically a tool for upholding classifications and the compelling interest test often a tool for

invalidating classifications.83 Under the equal protection test as usu-

79. The conclusion as to which characterization is appropriate is subject to manipulation by carefully phrasing the description of the promotion or admissions process without altering the substances of the process.

80. For Justice Douglas, constitutionality of a racial classification does not depend on members of the non-beneficiary class being considered individually in competition with members of the beneficiary class. The retrial of the DeFunis case that Justice Douglas wanted to order was not to determine whether DeFunis was a more qualified applicant than those admitted under the special admissions program. Availability of a remedy for DeFunis would actually depend on whether the law school's purpose in classifying applicants by race was to weigh race itself as a factor in admissions or to provide an equal opportunity to members of all racial groups.

81. Only the use of the strict scrutiny-compelling state interest test in cases involving "suspect classes" is discussed because infringement of "fundamental rights" is not an issue in state preferences in employment and school admissions.

82. It has been argued that a racial classification need only satisfy the rational basis test when the classification is not invidious towards minorities, DeFunis v. Odegaard, 82 Wash. 2d 11, 507 P.2d 1169 (Wash. Sup. Ct.), vacated, 416 U.S. 312 (1974), when the purpose of the classification is truly benign, "De- velopments in the Law-Equal Protection, 82 Harv. L. Rev. 1067, 1115-16 (1969) (Hereafter "Equal Protection Developments"), or when the majority discriminates against itself, Ely, "The Constitutionality of Reverse Racial Dis- crimination," 41 U. Chi. L. Rev. 723 (1974); cf. Sandalow, "Racial Preferences in Higher Education: Political Responsibility and the Judicial Role," 42 U. Chi. L. Rev. 653 (1975).

83. The cases upholding special restrictions on Japanese-Americans during World War II illustrate that under extreme circumstances at least the federal government might be able to show a sufficiently compelling interest to justify

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ally formulated and applied by the United States Supreme Court, the

approach is to determine the constitutionality of a classification by looking at the composition of the classes created by the classification. The rational basis/compelling interest dichotomy puts primary emphasis on the means of the state in achieving its purpose. This con- trasts with the approach of the Indian Supreme Court which puts primary emphasis on the state's overall policy or purpose, the end result.

The United States Supreme Court has on occasion forsaken the

rigid rational basis/compelling state interest dichotomy in favor of a more flexible or intermediate approach. It is too early to say whether the Court uses only one intermediate approach. In un- usual cases, the rational basis test has been interpreted as requiring that the state show something more than merely any defensible reason for its classification, with the result that the Court has struck down the classification as lacking a rational basis.84 Similarly the com-

pelling state interest test has sometimes been applied as a less than

rigorous standard.85 Some Supreme Court justices have favored a flexible equal protection test as opposed to the rigid rational basis/ compelling state interest tests.86 In the Columbia Law Review's post- DeFunis symposium, Professor Greenawalt presented the case for support of an intermediate level of scrutiny for benign racial classifica-

tions, classifications to assist a previously disadvantaged group.87 He

a racial classification. Korematsu v. United States, 323 U.S. 214 (1944); Hira- bayashi v. United States, 320 U.S. 81 (1943).

84. Department of Agriculture v. Moreno, 413 U.S. 528, 533-34 (1973) [the Court held that the unrelated person provision of ? 3(e) of the Food Stamp Act of 1964 which excludes households containing an unrelated person lacks a rational basis and so violates the equal protection component of fifth amendment due process]; Eisenstadt v. Baird, 405 U.S. 438, 447 (1972) [the Court held that classification based on marital status in a Massachusetts statute making it a crime to sell, lend, or give away contraceptives to an unmarried person has no rational basis and so violates the Equal Protection Clause].

85. Storer v. Brown, 415 U.S. 724, 736 (1974) [the state interest in the sta- bility of its political system is a compellnig state interest sufficient to uphold a one-year party-disaffiliation requirement for independent candidates]. See also DeFunis v. Odegaard, 82 Wash. 2d 11, 507 P.2d 1169 (Wash. Sup. Ct. 1973), vacated, 416 U.S. 312 (1974) [the state interest in compensating for past discrimination, achieving racial balance in the law student community and re- ducing the shortage of minority attorneys constitutes a compelling state interest sufficient to justify a preference for some racial groups in law school admissions].

86. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 98- 99 (1973) (Marshall, J., dissenting); Dandridge v. Williams, 397 U.S. 471, 520- 21 (1970) (Marshall, J., dissenting). Cf. Shapiro v. Thompson, 394 U.S. 618 (1969) (Harlan, J., dissenting).

87. Greenawalt, supra n. 11. The New York Court of Appeals applied an intermediate test focusing on the availability of a less intrusive alternative to determine whether a medical school special admissions program violated the Equal Protection Clause. Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 384 N.Y.S.2d 82, 348 N.E.2d 537 (1976).

1977] 631




argued that a court should sustain such a classification only when the classification is made to redress injustices and promote genuine equality.88 The court then should look for a substantial state interest and the necessity of the classification for preference in achieving that interest. The constitutionality of the preference turns on the purpose of the state in helping the class of beneficiaries and the necessity of using the means. Professor Greenawalt's intermediate level of scrutiny is different from the general approach of the rational basis/ compelling state interest dichotomy and, while sharing the Indian

Supreme Court's emphasis on whether the state's purpose is benign or discriminatory, also focuses on the effectiveness and necessity of the preference in achieving the state's interest.

IV

State of Kerala v. Thomas provides some insight into the Indian

Supreme Court's interpretation of American law on the issue of whether a state employment preference for some backward classes violates the constitutional right of equality. None of the justices relied on American law as an indispensable basis of his decision. Nor did any justice speculate as to how Kerala v. Thomas would be decided under the constitutional law of the United States. However, five of the seven opinions in the Thomas case referred to American cases or legal commentaries or both.

The three opinions dissenting on the constitutional equality issue made in all only one reference to an American authority. In contrast, the Advocate General of Kerala in his successful argument relied

basically on Indian rulings and American juridical writings.89 All four members of the majority cited American juridical writing. Jus- tices Mathew and Krishna Iyer made extensive use of American sour- ces.90 A possible explanation of the imbalance is that, in analyzing the values underlying American cases and commentary dealing with the Equal Protection Clause, the Indian Supreme Court found a decision upholding the Backward Classes Exemption to be a better

expression of these values than a decision invalidating the Exemption. Justice Mathew concluded that the constitutional right of equality

required proportional equality, a standard that was developed by the United States Supreme Court.9l Compensatory state action to create

88. Greenawalt, supra n. 11 at 560. 89. Id. at 536 (J. Krishna Iyer). 90. Chief Justice Ray referred to Tussman and tenBroeck, "The Equal Pro-

tection of the Laws," 37 Calif. L. Rev. 341 (1949), as a more complete discussion of the theory followed by the Indian Supreme Court that the doctrine of reasonable classification resolves the contradictory demands of legislative specialization and constitutional generality. 1976 All India Rptr. S. Ct. at 497.

91, 1976 All India Rptr. S. Ct. at 516-17,

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equality among people who are otherwise unequal because of dispari- ties in wealth, education and social environment is the essence of proportional equality. Justice Mathew pointed to Griffin v. Illinois92 and Douglas v. California93 as early United States Supreme Court decisions requiring proportional equality under the 14th Amendment, and Harper v. Va. Bd. of Elections'4 as a later case applying the same theory of equality. These cases held that providing appellate review without a free transcript for all criminal defendants, denying free counsel for frivolous appeals to all criminal defendants, and levy- ing a poll tax on all voters violated the Equal Protection Clause. De-

spite Justice Harlan's view that numerically equal treatment cannot violate the Equal Protection Clause,95 the U.S. Supreme Court in these cases required states to use a proportional standard to bring about

equality in fact.96 Justice Mathew transplanted the approach of the U.S. Supreme Court to India because he believed that this approach correctly implemented the meaning of equality.

Justice Krishna Iyer's approach in Kerala v. Thomas paralleled the approach suggested in the Harvard Law Review's 1969 article, De-

92. 351 U.S. 12 (1956). The Court held that if a state makes appellate review available to criminal defendants, this cannot be done in a way that denies review solely on the basis of indigency. Therefore, the state must provide free transcripts to indigents on appeal.

93. 372 U.S. 353 (1963). The Court held that even though providing counsel only where appointment of counsel would be "of advantage to the defend- ant or helpful to the appellate court" is a legitimate state objective, a system which provides free counsel to indigent criminal defendants only for selected appeals denies equal protection because the well-to-do can always afford an attorney.

94. 383 U.S. 663 (1966). The Court held that a poll tax that is applied indiscriminately to all potential voters violates the equal protection right of indigents.

95. See Griffin v. Illinois, 3'51 U.S. 12, 34-36 (1956) (Harlan, J., dissenting); Douglas v. California, 372 U.S. 353, 361-63 (1963) (Harlan, J., dissenting). See also Equal Protection Developments, n. 82 supra at 1166, 1177-81.

96. Justice Mathew believes that the United States Supreme Court has only gone half way in guaranteeing equality for blacks because the Court has not sufficiently applied the theory of proportional equality. He wrote:

Beginning most notably with the Supreme Court condemnation of school segregation in 1954 the United States has finally begun to correct the discrepancy between its ideals and its treatment of the black man. The first steps, as reflected in the decisions of the courts and the civil rights laws of Congress merely removed the legal and quasi- legal forms of racial discrimination. These actions while not produc- ing true equality, or even equality of opportunity, logically dictated the next step: positive use of government power to create the possibility of a real equality. In the words of Professor Lipset: "Perhaps the most important fact to recognize about the current situation of the American Negro is that (legal) equality is not enough to insure his movement into larger society." Lipset, The American Democracy 49.

1976 All India Rptr. S. Ct. at 518-19.

1977] 633




velopments in the Law-Equal Protection,97 from which he quoted extensively.98 Both said that a suspect classification is actually benign if it is used in an attempt to achieve an equal position in society for all races, castes or tribes. They agreed that if a court is convinced that the purpose of the measure is benign, the state should be free to choose any means reasonably related to achieving equality. Justice Krishna Iyer then discussed Schlesinger v. Ballard99 as illustrative of the U.S.

Supreme Court's understanding of the importance of separate classifications of unequal groups in government employment for the purpose of eliminating gross group inequality and attaining general equality. Justice Krishna ryer believed that the position of backward classes in the United States and India is comparable, and the values underlying constitutional equality are the same, and so looked to and found support for his approach to the constitutional equality issue in the Amer- ican juridical approach to equal protection.

V

A major reason for the debate in the U.S. over the constitutional-

ity of state preferences for backward classes, and for the Supreme Court's unwillingness to resolve the issue in DeFunis v. Odegaard, is the controversy over the relative values of economic betterment of backward classes and maintenance of a strict meritocracy. In Thomas, the Indian Supreme Court decided that constitutional equality favored the former. The justices' opinions on the competing policy interests

provide a point of reference for Americans to reconsider their own

balancing. Justice Mathew described the underlying social policy justifica-

tion of the decision that equality of opportunity is the right of all individuals to have comparable possibilities for development of their

capabilities and not the right to be treated by uniform standards:

The ultimate reason for the demand of equality for the members of backward classes is a moral perspective which affirms the intrinsic value of all human beings and calls for a society which provides those conditions of life which men need for development of their varying capacities.100

The defense of Kerala v. Thomas as an appropriate application of this

social-political perspective rested on several grounds: for historical

97. Equal Protection Developments, n. 82 supra. 98. 1976 All India Rptr. S. Ct. at 537-38. 99. 419 U.S. 498 (1975). The court held that a law allowing women offi-

cers in the United States Navy a longer period of commissioned service than male officers did not violate the equal protection right of the males. The court reasoned that Congress may rationally have believed that, because women officers have less opportunity for promotion, a longer period of tenure for women is consistent with providing equal opportunity for career advancement.

100. 1976 All India Rptr. S. Ct. at 521.

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reasons, members of backward classes have no opportunity to develop their intellectual capabilities.10' Therefore backward classes cannot succeed in direct competition.'02 To maintain uniform standards would be to perpetuate inequality.'03 The preference allows members of backward classes to compete with historically stronger sections of society.104 The constitutional right of equality of opportunity was designed to allow backward classes to use law to achieve collective justice rather than being forced to resort to violence.'05

The dissenting justices' most persistent criticism was that the Court's holding would result in the erosion of the right of equality.106 The majority's response was that the right of equality allows state employment preferences only in favor of backward classes?07 and then only when strict conditions are satisfied.'08 The Court will prevent erosion of the right of equality.'09 A corollary to the erosion

argument is the argument that, given the realities of political life, some groups not eligible for preferences will nonetheless get preferences. The majority responded that the Court will use the constitutional right of equality to strike down preferences granted because of gov- ernmental favoritism"l or granted in response to the demands of politically powerful groups.ll Furthermore, the mere possibility of abuse is not a reason to invalidate a state regulation.ll2

The dissenting justices also argued that promotion preferences based on backwardness would undercut the efficiency of the government administration. Preferences are inconsistent with the intention both of the examinations and the Constitution's guarantee of equality of opportunity-to exclude considerations extraneous to merit and efficiency.l13 The large number of 1972 promotees who had not passed the examinations was cited as particularly incompatible with the maintenance of efficiency.l4

The majority argued that the tests only had limited usefulness

101. Id. at 556 (Fazal Ali, J.). 102. Id. at 501 (Ray, C.J.). 103. Id. at 539 (Krishna Iyer, J.). 104. Id. at 544 (Fazal Ali, J.). 105. Id. at 529-30 (Krishna Iyer, J.). 106. Id. at 509 (Khanna, J.), 522-23 (Beg, J.), 543 (Gupta, J.). 107. Id. at 499-500 (Ray, C.J.). 108. Id. at 556 (Fazal Ali, J.). Justice Fazal Ali also makes the unconvinc-

ing argument that the Court has previously allowed classifications that were more damaging to the right of equality than the classification under the Back- ward Classes Exemption. Id.

109. Id. 110. Id. at 552 (Fazal Ali, J.). 111. Id. at 532 (Krishna Iyer, J.). 112. Id. at 520 (Mathew, J.). 113. Id. at 508 (Khanna, J.), 522 (Beg, J.). 114. Id. at 504 (Khanna, J.).

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in terms of actually measuring competence.ll5 For example, the tests did not measure responsible and responsive service.16 Also, the tests measured superior performance, not basic proficiency; thus waiving the test requirement is a controlled risk as opposed to a compromise of minimum efficiency.117 The majority justices pointed to the facts to show that the Backward Classes Exemption did not adversely affect the quality of the state service: the promoted scheduled caste and tribe employees did not perform unsatisfactorily,ll8 the preferred candidates had greater seniority and other virtues,119 the preference helped only the most qualified members of scheduled castes and tribes,120 and the promotees would eventually be required to pass the tests.121

Justice Krishna Iyer, more than the dissenting justices, argued that preferences in favor of backward classes fail to achieve their

purpose.122 He said, first, that preferences mostly aid the elite of the backward classes. Second, in a democracy, the most vocal groups whose burden of backwardness has been substantially lightened will benefit from preferences. Third, the preferences will have the effect of obscuring from public view the most needy people and prevent their integration into society.

Other criticisms of the effectiveness of preferences in India and the United States were not considered sufficiently important by the Indian Supreme Court justices to be mentioned in their opinions. For

example, the Court did not discuss overinclusiveness or underinclu- siveness, but found that the state had the freedom to include and exclude beneficiaries based on the backwardness of the group into which

they were born.123 The Court did not discuss the difficulty of deter-

115. Id. at 520 (Mathew, J.), 536 (Krishna Iyer, J.). See also id. at 523 (Beg, J.).

116. Id. at 534 (Krishna Iyer, J.). 117. Id. at 526-27 (Krishna Iyer, J.). 118. Id. at 523 (Mathew, J.). There was only cursory mention of how ca-

pable the scheduled caste and scheduled tribe promotees were as upper division clerks, possibly because no evidence other than opinion was available on this point.

119. Id. at 552 (Fazal Ali, J.). 120. Id. at 501 (Ray, C.J.). 121. Id. at 502 (Ray, C.J.), 552 (Fazal Ali, J.). 122. Id. at 531-32. Justice Krishna Iyer referred to research by the A.N.

Sinha Institute of Social Studies, in Patna, as revealing a dual society among scheduled castes and tribes. A small elite secures all of the benefits from preferences while the special concessions do not touch the large majority. Also an unknown number of individuals fraudulently claim to be within the classes designated as beneficiaries of preferences. Isaacs, India's Ex-Untouch- ables 115 (1965). Justice Krishna Iyer felt that research was necessary to determine the validity of these criticisms of the effectiveness of preferences and administrative re-evaluation and innovation in the programs were the proper means of refocusing programs toward the neediest people.

123. After Kerala v. Thomas, the Supreme Court of India held that a state in distributing special benefits to backward classes can exclude well-off mem-

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mining whether a class is sufficiently backward to merit a preference from the executive's point of view or to be eligible for a preference in light of the constitutional limit of the right to equality.124 Nor did the Court discuss the possible stigmatizing effect of preferences, or the argument that Kerala's preference aided individuals but had an insig- nificant impact on the economic status of the backward classes.

One can argue that when state preferences benefit backward classes, the most affluent in the society are able to compete successfully for the smaller number of available slots so that the backward classes advance at the expense of the groups just above themselves in economic and educational achievement. The Court did not discuss that issue and, in fact, dealt only briefly with the social policy aspects of whether state-sponsored preferences unfairly burden individuals who are directly injured by the preference.125 This was of course the basic constitutional question in plaintiff's attack upon Kerala's Back- ward Classes Exemption, but the Court apparently was willing to allow non-discriminatory means of distributing the burden of economic betterment of backward classes.

The Indian justices all agreed that backward classes, regardless of their innate abilities, cannot successfully compete with more advanced sections of the population. The government should and is attempting to better the social position of these classes. The government will not accomplish this betterment easily and should be free to experiment with different means of aiding them. Any society has finite resources, so some individuals must necessarily be injured when backward classes get an increased portion of the resources. The social policy debate within the Indian Supreme Court con- centrated on the societal costs of allowing preferences rather than on the limitations of such preferences as a social tool or the burden that preferences impose on non-preferred candidates. The traditional jus- tifications for maintaining strict meritocracy in lieu of standards which aid candidates from backward classes are that meritocracy

bers of a tribe from the scheduled tribe classification. Inc. Tax Off'r, Shillong v. R. Rokin Roy Rymbai, Civ. App. No. 5792549, 1975 (Supreme Court of India, 17 Feb. 1976).

124. In India, Presidential notification of some backward classes including scheduled castes and scheduled tribes serves as a widely accepted starting point in determining which groups are eligible for preferences. In the United States the U.S. Civil Rights Commission or some other official body could be authorized to publish periodically non-binding regional lists of backward ethnic groups in the United States.

125. In a decision relying heavily on legislative history, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981 protect whites in addition to blacks against racial discrimination by an em- ployer. McDonald v. Santa Fe Transportation Co., - U.S. -, 96 S. Ct. 2574 (1976). This case suggests that the U.S. Court might give more weight than the Indian Court did to the policy arguments that preferences unfairly burden candidates from the non-backward classes.

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promises competition based on individual qualifications of the candi- dates126 and high quality services for the citizenry. The Indian

Supreme Court found delivery of high quality services to be a persua- sive argument for maintaining meritocracy, but was not convinced by the fair competition arguments.127 Thus the Court's policy debate focused on whether an erosion of the equality right or a deterioration of government services would follow a constitutional interpretation upholding preferences for backward classes.

CONCLUSION

The four-three split within the Indian Supreme Court on the issue of whether a state-sponsored preference for scheduled castes and tribes violates the equality right of the non-beneficiary class confirms the

difficulty of resolving constitutional interpretations of the equality right in a liberal democratic political system. In Kerala v. Thomas the Court did not decide the precise constitutional issue raised by state-sponsored preferences for racial and ethnic groups in the United States. The majority of the Supreme Court concluded that a preference for scheduled castes and tribes was not discrimination based on caste or race and so did not raise the possibility of violation of the Anti-Discrimination Clause. The issue of the extent to which the social and economic position of ex-untouchables and tribals in India is

comparable to that of Blacks, Native Americans or other ethnic groups in the United States is beyond the scope of this article. In fact the

Indian justices themselves viewed the question whether the benefici-

ary classes were "castes" and "tribes" as subsidiary, each justice's answer depending on his view of whether the Backward Classes Ex-

emption violated the Equality of Opportunity Clause.

The constitutional context of the Equality of Opportunity Clause

provides support for the Indian Court's decision, whereas the U. S.

Constitution contains no comparable language helpful in deciding whether the Equal Protection Clause permits racial preferences. The Indian Constitution uses the classification "scheduled caste-

scheduled tribe," affirms that the economic betterment of these groups is important, states that their claims should be considered in appointments to government employment, and specifically allows the reserva-

tion of government jobs for backward classes. Unlike the Indian Con-

stitution enacted in 1950, the United States Constitution and the 14th

Amendment were enacted at times of limited and peripheral government involvement in the betterment of backward classes. Thus the

126. The entire Supreme Court rejected the view that the promotion tests should be the Court's sole measure of competency.

127. Justice Douglas' view is that equal protection guarantees fair competition and not a meritocracy. Thus admission to law school by drawing lots

apparently would not violate equal protection. DeFunis v. Odegaard, 416 U.S.

312, 344 (Douglas, J., dissenting).

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history of these two documents and the scope of their subject matter prevent the U.S. Constitution from providing as much guidance for the meaning of the Equal Protection Clause as the Indian Constitution does for the meaning of equality. The Indian Supreme Court says that the Equality of Opportunity Clause permits preferences only for underrepresented, severely backward classes, to provide no more than adequate representation, and not incompatible with administrative efficiency. These limits largely correspond to language found in the Reservation Clause and Art. 335.

Nonetheless the practical impact of Kerala v. Thomas is to resolve the Bakke issue in India. In light of the broad sweep of the opinions in Kerala v. Thomas, clearly a racial or caste preference in favor of a severely backward, underrepresented class is consistent with the constitutional right of equality. When the justices analyzed Amer- ican case law, their concern was to evaluate the approach and reasoning of the U.S. Supreme Court and not the specific applications of the legal rule. This is the appropriate view for American courts to take of Kerala v. Thomas. The underlying justification of the Thomas decision, and a point at which all four of the majority justices' opinions converged, is that constitutional equality is a constructive concept and, therefore, allows state preferences for backward classes. The historical forces that contribute to backwardness-geographical isolation, immigration and discrimination-make it inevitable that backwardness will often characterize racial, caste and ethnic groups. As a constructive concept, the equality right should not be interpreted to fall most heavily on those whom the drafters intended to protect. Equality in state action basically means the uniform distribution of benefits. However, in appointment to government service, the Indian Court found that equality itself contains two exceptions: classification to favor competence and to redress rooted inequality. Thus neither preservation of meritocracy nor achieving actual equality is the sole purpose of the equality right. Redressing deprivation is no less consistent with equality than rewarding competence.

The Indian Court's approach suggests three lessons for the United States judiciary. First, the Indian justices rightly tried to form a foundation for their decision by extracting the values underlying American equal protection and understanding the purpose of constitutional equality. Second, this starting point in deciding the constitutionality of state classification was to determine the result of the classification. Cases such as Yick Wo v. Hopkins,128 Brown v. Board of Education,129 and Swann v. Charlotte-Mecklenburg Board of Edu- cation130 strongly support an equal protection analysis that initially

128. 118 U.S. 356 (1886). 129. 349 U.S. 294 (1954). 130. 402 U.S. 1 (1971).

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determines whether the classification impedes actual equality. Third, it rejected the notion that the right of equal protection was intended solely to insure uniform distribution of government benefits or to protect meritocracy. The rational basis/compelling state interest approach and Justice Douglas' racially neutral classification approach emphasize the constitutionality of the state's means. Whether the state's end is consistent with the purposes of the equality right should be at least equally decisive in the constitutional determination. The approach of the Indian Supreme Court was to interpret the equality right as protecting, not preventing, actual equality.

The Indian Supreme Court's use of the reasonable basis test for equality has preserved the court's flexibility in establishing situations under which different types of classifications are permissible. The Court said that a state employment preference has a reasonable basis only if the beneficiary class is severely backward, underrepresented, and will receive no more than adequate representation, and the preference will not prevent the maintenance of administrative efficiency. This more flexible approach is in contrast to the rigid rule urged upon the U.S. Supreme Court by those who argue that constitutionality of a classification should depend on whether the classification is traditionally suspect and therefore automatically subject to strict scrutiny or is a classification based on factors such as wealth which are valid upon the showing of a rational basis. Adher- ing to this formulation of the equal protection test might prevent a thorough analysis of the competing interests on the issue of the constitutionality of racial preferences in employment and admission to educational institutions.

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