Lessons Learned from Comparing the Application of Constitutional Law and Anti-Discrimination Law to African Americans in the U.S. and Dalits in India in the Context of Higher Education

In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. and Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country\u27s population. Based upon the 2000 census, African-Americans constitute 12.7% of the American populations, and, according to the 1991 Census Report of India, Dalits make up 16.5% of the Indian population. Yet, although African-Americans have been victims of hereditary racial oppression in the U.S. for almost 400 years, Dalits have suffered oppression for 3,500 years and counting

Lessons Learned from Comparing the Application of Constitutional Law and Anti-Discrimination Law to African Americans in the U.S. and Dalits in India in the Context of Higher Education

In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. and Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country\u27s population. Based upon the 2000 census, African-Americans constitute 12.7% of the American populations, and, according to the 1991 Census Report of India, Dalits make up 16.5% of the Indian population. Yet, although African-Americans have been victims of hereditary racial oppression in the U.S. for almost 400 years, Dalits have suffered oppression for 3,500 years and counting

AFTER JUDGMENT DAY: UNDER WHAT CONDITIONS ARE COURT DECISIONS IMPLEMENTED?

Scholars have noted the increasing tendency of unelected judges to pass political judgments. A less considered aspect of these judgments is their implementation. Unimplemented judgments reduce the authority of courts, make their activism less defensible. But research on judicial implementation is limited. In contrast, I examine judgments of the Indian Supreme Court. By focusing on an activist court in a developing country, fresh challenges for implementation emerge. In my dissertation, titled ‘After Judgment Day: Under What Conditions Are Court Decisions Implemented?’, I argue that a political judgment is implemented when three conditions are all met: (1) there is no counter-legislation, (2) the state has the physical resources, and (3) the bureaucracy is competent. In the absence of either of the first two conditions, judges are powerless to enforce their will. When only the third condition is missing – i.e. the bureaucracy is too incompetent to implement – courts have an opportunity. Judges can work alongside a determined litigant-movement to monitor the bureaucracy and better implement judgments. This argument is inducted from a legal survey of all Indian Supreme Court judgments on three politically salient issues – caste, land, and religious conflict – from 1993-2012. In particular focus is the implementation of one judgment from each of these issues. The first case study analyzes judgments overseeing rehabilitation for thousands of families displaced by the Narmada dam project. The lesson that emerges is that where the state lacks the resources to implement court decisions, judges are powerless. The second case study, on Hindu-Muslim conflict, examines the courts intervention in the aftermath of the 2002 Gujarat riots. I conclude that when the only problem marring implementation is an incompetent bureaucracy, movements and courts can together make the bureaucracy autonomous. The third case studies decisions limiting employment quotas for backward castes. I conclude that judgments are not implemented when politicians enact legislation to formally override judgments. The theory that emerges is a critical account of judicial power. But I also provide the narrow but plausible circumstances when judges and movements can work together to bring about political change