Reservations, Equality and the Constitution – II: The Early Cases

In our first post on reservations, we argued that the text and structure of the Constitution suggests that the vision of equality embodied in Articles 14, 15 and 16 is colour-blind: that is, it views as a violation of equality any governmental attempt to classify individuals on the basis of certain prohibited categories, like caste, race, sex etc., even if such classification is ostensibly for a benign purpose, like remedying past inequalities. It is important to understand that formal equality and colour-blindness are different things. Formal equality merely calls for treating like cases alike, on pre-determined criteria of likeness. Colour-blindness, on the other hand, is a deep substantive vision of the ideal society, motivated by a strongly individualistic bent that insists on considering individuals only as individuals, when they are subject to any government-mandated distribution of benefits and burdens.

The Supreme Court’s early cases emphatically affirm the colour-blind view. State of Madras v. Champakam Dorairajan is the first, decided by a 7-Judge bench in 1951. The Madras government’s policy, which stipulated admission to medical and engineering colleges in a proportion, based upon caste and religion, was challenged, inter alia, under Article 15(1) [recall that 15(4) did not exist at the time]. The State made an argument that reservations in educational institutions were justified under Article 46, part of the Directive Principles of State policy, which required the State to “promote with special care the educational and economic interests of the weaker sections of the people.” The Court rejected the argument on two grounds: first, obviously, that the Directive Principles were not enforceable.  Secondly, however, it argued that if reservations could be justified under Article 46, this would make 16(4) redundant. It logically follows, then, that Article 16(4), which allows for reservations under the broader Article 16 scheme of equality of opportunity, is an exception to Article 16(1), and that 16(1) itself does not contemplate reservations in its guarantee of the equality of opportunity – because if it did, finding another source for the government’s reservation-making power, in Article 46, would not make Article 16(4) redundant. In other words, the redundancy argument works only if we assume that Article 16(4) is the source of the government’s power to make reservations, and from that it follows that Article 16(1) cannot be. This, precisely, is the ideal of colour-blindness that we discussed in the last post: even for remedial purposes, equality under the colour-blind theory does not permit classification on prohibited bases, and such classification can be justified only by carving out a specific constitutional exception (16(4)). Since Article 15 had no parallel 15(4), the Court struck down the Madras Government’s policy.

Directly in response to the Supreme Court’s judgment, the Constitution was amended to insert Article 15(4). Article 15(4) reads:

Nothing in this article… shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Apart from a few differences that are not relevant at this stage, this is framed much like Article 16(4). And much like Article 16(4), the language – and in this case, the specific history, Article 15(4) suggests that it is an exception to the broad equality provision under 15(1), to allow the government to do something it could not otherwise do – classify individuals on the basis of sex, race, caste etc., for certain specific purposes (the advancement of socially and educationally backward classes, i.e., remedial affirmative action).

The logic of Champakam Dorairajan was at work in the next Supreme Court case on point, The General Manager, Southern Railway v. Rangachari. Among the many questions at issue in Rangachari, the question also was whether the Article 16 scheme allowed for reservation in promotions. Although the Court held that it did, it also observed that Article 16(4) – restricted as it was to “appointments“, did not cover the full spectrum of employment possibilities that were covered by Articles 16(1) and (2). In particular, the Court held that “in matters relating to salary, increment, gratuity, pension and age of superannuation there can be no exception even in favour of backward classes.” (Paragraph 22) We have already explained above why this approach is consistent with the colour-blind vision.

Specifically, the practical effects of adopting a colour-blind interpretation of Articles 15 and 16, and treating 15(4) and 16(4) as exceptions, were felt in M.R. Balaji v. State of Mysore, a Constitution Bench decision from 1963. In that case, the State of Mysore , fixed 68% reservation for “socially and educationally backward classes” as required by Art. 15(4). These backward classes were identified on the basis of caste. The policy was struck down by the Court on two grounds, both of which underscore the character of Article 15(4) and its relationship with 15(1). First, the Court rejected the sole use of caste as a determinant of social and educational backwardness, on three grounds: first, that class does not equate to caste, and an identification based on caste to choose a class may not always be logical; second, it may result in perpetuating the vice of caste, which defeats the entire purpose of the provision; and third, there exist communities such as the Muslims and Christians, which do not recognize the caste system. The second reason is particularly crucial, because it assumes that the purpose of the Article 15 scheme is to achieve a society in which caste is legally and sociologically irrelevant (this is consonant with the drafting history, and Ambedkar’s idea that the reservation provisions would sunset in ten years). That, precisely, is a colour-blind society. There is, of course, a distinction between the ideal of a colour-blind society, and a colour-blind Constitution. The latter would not permit any classification unless specifically authorised by a provision such as 15(4) or 16(4), whereas the latter would, conceivably, permit classification in a narrow area where such classification was a necessary step on the road to eventual colour-blindness (a number of feminist theorists, for instance, argue that while their end-goal is to make sex irrelevant, that goal can only be achieved by present-day remedial action based on sex, to bring women up to a point where colour-blind legislative programs do not handicap them because of underlying structural inequalities).

Colour-blindness was also at play in the Court’s rejection of the 68% quantum. Since Article 15(4) was an exception, the Court held, the quantum of reservations permissible under it could not exceed 50% – because, logically then, the exception would swallow up the rule, the rule here being the colour-blind equality code under Article 15(1).

The logic in Balaji led the Court to hold unconstitutional the “carry forward” rule in its next case, T. Devadasan v. Union of India. The carry-forward rule holds that unfilled vacancies that have been set apart for reserved-category candidates are to be “carried forward” to the next year in addition to the already existing reservations, thus increasing the quantum or reservations in the succeeding year by the amount unfulfilled presently (to a limit of two years, in the case at hand). Following Balaji, the Court held that insofar as, because of the carry-forward rule, the reserve vacancies in any one year grew to exceed 50%, the rule was unconstitutional. In addition, the Court framed Article 16(1) in explicitly individualistic terms:

“… the guarantee contained in Art. 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointment to any office under the State… the guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the state is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled.” (Paragraph 22)

A closer analysis reveals that the carry-forward rule itself is implicitly framed in group-communitarian terms. The goal of carry-forward is to ensure that at a given time t, the work-force has a certain specified number of persons belonging to a particular community. The procedure of selection, and the classifications involved in it, are designed to achieve the end-goal of adequate group representation. As such, therefore, the Court’s striking it down in Devadasan was both unsurprising and doctrinally consistent.

Justice Subba Rao dissented. And his dissent was not just to the narrow holding of unconstitutionality in Devadasan, but a radical challenge to the entire conception of equality that we have been discussing thus far, and that the Court had (thus far) adopted as given over the course of fifteen years. Justice Subba Rao argued:

“Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it… that is why the makers of the Constitution introduced clause (4) in Art. 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in an what by the main provision but falls outside it. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the Article.” (Para 35)

Each of the underlined portions reveal the depth of Justice Subba Rao’s challenge to the dominant vision. In making 16 the specific application of a general rule of equality, he links 14, 16(1) and 16(4) – that is, reservations, equality of opportunity, and equality more broadly, are no longer at odds, but part of an overall coherent scheme. Thus, 16(4) transitions from being an exception to the rule in 16(1) and (2) to being an “emphatic” restatement of it. And thus, logically, the legitimising constitutional source of affirmative action is no longer 16(4), but 16(1). Or, in other words, the very concept of equality that the Constitution is committed to includes within it the guarantee of affirmative action. The shift is completed in Justice Subba Rao’s reference to the “uneven basic social structure“, which has rendered certain “communities” backwards. This is the classic statement of the group-subordination principle of equality that we discussed in the last post: status quo is structurally constructed to disadvantage communities, and insofar as individuals are part of those communities, they suffer structural discrimination. Remedial action aimed at communities, therefore, is not an exception to the general rule of equality, but serves to fulfill equality’s deep purposes.

Justice Subba Rao’s dissent had no immediate impact. In C.A. Rajendran v. Union of India, the Court continued on the straight and narrow path laid before it. We need not go into the complex facts of the case here; suffice it to say, broadly, that it was the absence of reservations that was challenged in C.A. Rajendran, on the ground that, far from being an exception to 16(1), 16(4) was itself a constitutional guarantee and a fundamental right. The Court roundly rejected this contention, holding that 16(4) was merely an enabling provision. In so doing, the Court mentioned the divergence between the majority and dissent in Devadasan, but refused to definitively reject Justice Subba Rao’s views. Implicitly, however, it certainly did so, because if 16(4) was, like Justice Subba Rao said, an emphatic restatement of 16(1), and if 16(1) included within its conception of equality the ideal of affirmative action, then reservations would indeed be a matter of right, because 16(1) makes it clear that “there shall be equality of opportunity.” This, unambiguously, is the language of right.

Thus, in the first twenty years of the Court’s equality-and-reservations jurisprudence, with the exception of a single lone dissent from Justice Subba Rao, a series of (large-ish) benches affirmed a colour-blind vision of equality in the 14-15-16 code. Justice Subba Rao’s opinion, however, was soon to play a transformative role in the Court’s jurisprudence, and it is that we will turn to in the next post.

 

 

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1 Comment

Filed under Equality, Reservations/Affirmative Action

One response to “Reservations, Equality and the Constitution – II: The Early Cases

  1. Nilesh

    Excellent post! Looking forward to next one in the series.

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