On what grounds is affirmative action permissible? The apex courts of two of the world’s largest democracies have recently answered this question in seemingly diametrically opposite ways. In the case of India, the Supreme Court expanded the list of grounds of affirmative action to include economic criteria, but to the exclusion of caste. In the case of the United States, the Supreme Court retracted its support for race-based affirmative action. Despite what may seem like contradictory positions, both courts aligned in undoing the traditional understanding of affirmative action as redressing discrimination. They did so by drawing an artificial wedge between discrimination and disadvantage such that discrimination was defined exclusively in terms of social status and construed as divorced from its economic and political implications. The article shows that this was the result of the courts’ fundamental misunderstanding of race and caste as grounds. This misunderstanding contributed to annihilating the very edifice of grounds on which discrimination law is mounted. The article argues that better appreciation of grounds as ‘intersectional multivalent collectivities’ can help both redress disadvantage associated with grounds and wither away the statuses which form the basis of discrimination on those grounds.

Speaker details: Shreya Atrey is an Associate Professor in International Human Rights Law at the Faculty of Law, University of Oxford, and is based at the Bonavero Institute of Human Rights. She is an associate member of the Oxford Human Rights Hub, an Official Fellow and Racial Justice and Equality Fellow at Kellogg College, and a Senior Teaching Fellow at New College. Shreya is the Editor of the Human Rights Law Review (OUP). Previously, she was based at the University of Bristol Law School and has been a Max Weber Fellow at the European University Institute, Florence, and a Hauser Postdoctoral Global Fellow at the NYU School of Law, New York. She completed BCL with distinction and DPhil in Law on the Rhodes Scholarship from Magdalen College, University of Oxford.