Reservations, Equality and the Constitution – I: Origins

What vision of equality does our Constitution commit us to? The answer has been contested repeatedly throughout the fraught legal history of Articles 15 and 16. It has involved numerous amendments, at least one complete judicial volte face, and multiple basic structure challenges, past as well as ongoing. To understand what is at stake, therefore, we must trace the judicial interpretation of these provisions through some of the most important cases; and the most fruitful area of enquiry, I suggest, is the Supreme Court’s jurisprudence on reservations – or, as is known by its more generic term – affirmative action.

Undeniably, discrimination on the bases of, inter alia, caste, sex, religion and place or origin was rife in pre-colonial and colonial India. And undeniably, Articles 15 and 16 are designed to remedy this. This is why, Article 15(1) states:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

And, Article 16(1) states:

“There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”

These two articles are remedial in nature, that is, they seek to remedy, through law, historical wrongs – in this case, the wrong of discrimination. How, exactly, do they propose to do this? To fix ideas, let us start by proposing two tentative definitions. A colour-blind vision of equality is one that treats all classifications based on certain prohibited bases as inherently suspect, and in need of a compelling justification. This theory argues that the historical wrong in question was sorting people by the colour of their skin, their sex, or their caste, and treating them in an inferior manner on that ground. If we are all free and equal individuals, any governmental action that seeks to distribute benefits and burdens by classifying us in this manner, must be presumptively invalid. Race, sex, caste etc. are simply irrelevant to our worth as persons – hence, the term “colour-blind“. The most famous exposition of this principle is found in US Supreme Court’s Justice Harlan’s dissenting opinion in the infamous Plessy v. Ferguson case, that upheld racial segregation in public facilities. Justice Harlan wrote:

“In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution in color-blind and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.   The humblest is the peer of the most powerful.  The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved…. the arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.  It cannot be justified upon any legal grounds…”

More recently, Justice Thomas, in Fisher v. Texas, provided the modern gloss of the doctrine:

“… government must treat citizens as individuals and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny.”

At the heart of the color-blind theory is not simply a distaste of classifications, but the idea that citizens must be treated as individuals, and not as members of groups. Thus, one of the concerns that is standardly expressed by supporters of the colour-blind theory is that reservations and affirmative action – that classifies on the basis of groups – will serve only to perpetuate a society in which people are characterized and defined by their affiliation to and membership of stipulated social groups. This, for those who value the primacy of the individual, is an anathema. Thus, Justice Powell, in the famous Bakke case, was to observe:

“Disparate constitutional tolerance of such [racial] classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them…”

Against the colour-blind theory of equality stands the group-subordination theory. The group-subordination theory holds that insofar as our society has been historically rife with discriminatory forms of injustice, such injustice has been meted out to groups qua groups – to women, to “lower-castes”, (at different stages and at different places) to Hindus or to Muslims. Insofar as individuals have suffered, they have suffered by virtue of their membership of these groups – as women, as Dalits, and so on. Thus, genuine, substantive equality can be achieved only by ensuring that historically subordinated groups are no longer subordinated. So, for example, Justice Brennan wrote, when dissenting in Bakke: 

“Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area… a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large.”

The last sentence is crucial, because it represents the anti-subordination view that discrimination is not confined simply to laws, but permeates society at every level. Thus, it is note enough for a Constitution to simply declare equality – if, because of a history of past discrimination and continuing non-legal present discrimination, minority groups are placed at a significant disadvantage qua minority groups, the government is permitted to take positive action to remedy that situation. One such action – the most famous and the most controversial – is affirmative action.

Which of these two visions – if any – is embodied in the Constitution? Of course, a complete answer will require an analysis of sixty years of judicial practice, but here is my first claim: at the time of the framing, there are good arguments for believing that the Constitution was committed to a colour-blind vision of equality. This can be seen from a textual, structural and historical reading of Articles 15 and 16. First, the text specifically uses the term any citizens and all citizens in Articles 15 and 16, which is a clearly individual-centric term. Article 15 could have read “The State shall not discriminate on the basis of sex, caste, religion…” Instead, it reads “the State shall not discriminate against any citizen on the grounds of…” The addition of “any citizen” is superfluous unless it is meant to signify a commitment to the colour-blind, individual-centric vision of equality.

Secondly, consider Article 16(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.”

We shall come to the wildly diverging judicial interpretations of this Article in a subsequent post, but on pure text – this provision is framed as an exception to Article 16(1), thus implying that affirmative action needs a specific constitutional sanction, thus further implying that under the equality provision of Article 16(1), affirmative action is impermissible. This is further buttressed by Article 16(2), which states:

“No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.”

A combination of these three provisions lend powerful support to the colour-blind view: the colour-blind view argues that affirmative action/reservations are presumptively impermissible precisely because they classify on the basis of race, caste, sex, religion etc. Articles 16(1) and 16(2) seem to void any such classifications, and 16(4) carves out a specific exception to the rule. And even further support from this point comes from the absence of a parallel provision in Article 15: at the time of the framing, Article 15(4) didn’t exist (it came into effect as a result of the judgment in Champakam Dorairajan, which we shall discuss in the next post). The only reason why this would make textual – and structural – sense would be if the framers saw a specific value in providing reservations in employment, but not in education. Whatever the merits of that view, it affirms that the idea of equality under the Constitution (again, at the time of the framing) did not contemplate reservations unless specifically provided – directly in line with the colour-blind theory.

And lastly, the Constituent Assembly debates: throughout the Debates, we find references to how the legitimacy of the Assembly was derived not from groups, but from the people as a whole. At numerous points, arguments that such-and-such group is not represented are answered by the contention that ultimately, it is the people who are represented. More importantly,  we must remember, of course, that when reservations were proposed, Ambedkar defended them by specifically arguing that they were temporary (the original plan was to phase them out in ten years time). Once again, this is colour-blindness – the ultimate ambition is to dissolve group identities, and distribute benefits and burdens only on the basis of the individual qua individual. Ambedkar’s defense of a limited exception to the overall equality principle was that it was necessary precisely to achieve that ultimate, individualist goal.

Thus, there are strong arguments to suggest that the framers believed that the Constitution was meant to be colour-blind. This is not a mere academic quibble: if it is true that the vision of equality is, indeed, a colour-blind one, then that means, for example, that the interpretations of Article 15(1) and 16(1), must follow that vision; in other words, insofar as the exceptions under, for instance, 15(4) or 16(4) are not attracted, classifications (for example, on other proscribed bases) are to be viewed strictly, and group-centred arguments based on historical subordination are not to be accepted easily. And this also has ramifications across the board, because the question of whether our fundamental rights are, ultimately, built on the idea of the individual, or a more communitarian idea that involves groups, has consequences for the way we interpret other rights, such as free speech, for instance (can the government control the speech of some powerful groups to aid others to speak?), or the freedom of religion (is membership of a religion determined by an individual or by religious authorities?) and so on.

Therefore, the theoretical foundations of Articles 15 and 16 are critical not just to a correct interpretation of equality, but to our Constitution as a whole. In this post, I have made a start by positing the initial theory that undergirded them – one of colour-blindness. We shall now move on to examine the cases.