CEU Electronic Theses and Dissertations, 2016
| Author | Sarkar, Arpita |
|---|---|
| Title | Three models of affirmative action through the lens of separation of powers: south africa, canada and india |
| Summary | Affirmative action provides equal opportunity to persons from marginalized communities irrespective of, and taking into consideration, the weaknesses induced by oppression over time. The constitutionality of affirmative action therefore, is not the subject matter of study in this paper. Rather, premised on the constitutionality of affirmative action, this study intends to explore the different models, based on the organs of the State that are involved in identifying communities eligible for affirmative actions. There is no single answer to the question as to which organ of the State is most eligible to discharge this duty. This study on the other hand proves by exploring the constitutional and legal provisions in South Africa, Canada and India, that despite the three different organs of the States taking active role in these jurisdictions, the affirmative action has attained significance in all three constitutional democracies. Though all the three organs of the State functions in co-ordination with each other regarding implementation of affirmative action programs, it depends largely on the nature of the separation of powers principle practised under different constitutional set-ups to determine which organ of the State shall take the leading role in identifying disadvantaged communities for affirmative actions. History and social structure also play a significant role in conferring authority on different organs of the State to implement this objective. In Canada, the historical dominance of the legislature in discharging the function of implementing the equality clause has made it the main organ for implementing affirmative action programs and also for identification of communities. Local level dominance of communities known as the ‘upper castes’, on oppressed communities however, makes the legislature an unsuitable organ for deciphering the disadvantaged communities in India. The Constitution has therefore, explicitly conferred this authority on the Executive. The shift to conferment of authority of judicial review on the courts by the Constitution of Republic of South Africa 1996, has resulted in generation of robust jurisprudence on rights based constitutional claims which includes affirmative action. This study concludes that when constitution explicitly confers authority on different organs of the government for implementation of a right, then the same should be followed without amending the constitution as per convenience. Even when the constitution does not provide explicit authority on any organ, the constitutional set-up in itself develops a procedure for implementation of these rights. In such cases however, some level of deference and understanding among the different organs of the state becomes imperative to avoid conflict. |
| Supervisor | Moschel, Mathias |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2016/sarkar_arpita.pdf |
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