One Size Doesn't Fit All- A Contextualist Approach to Narrow Tailoring

Abstract

The contentious issue of affirmative action finds itself in rough waters once again with the Supreme Court of the United States remanding a case involving race-conscious admissions to the lower court “because the Court of Appeals did not apply the correct standard of strict scrutiny.” While the US courts attempt to evolve scrutiny standards to affirmative action initiatives; the Indian sentiment on affirmative action remains strictly populist since its inception as a policy for remedying opportunity deficits among the poorly defined under privileged classes. It serves as an interesting study to compare the American approach on positive discrimination, vis-à-vis, the Indian approach which shows a stark difference in its rigidity, absence of a well-defined policy, judicial analysis, etc. This article examines the strict scrutiny test and its narrow tailoring component, as it reviews the evolution of American jurisprudence and argues that a moderate contextualist approach best serves to balance the interests of the preferred and non-preferred groups, while adhering to the constitutional definition of equality. The chief legal proposition put forth is that race/caste-conscious ends can and must be achieved through policies that are primarily race/caste-neutral or those that veer towards neutrality as reviewed under the strict scrutiny test. It is proposed that a less formalistic approach, which steers clear of being an “either-or” policy and focuses on an individualised review combined with a narrow tailoring requirement unique to the situation would assure a more faithful adoption of the strict scrutiny test to satisfy constitutional standards. Further, it proposes that the strict scrutiny test must be applied to the Indian context and puts forth a new model for determining classes that require affirmative action in the Indian context of socio-economic realities.