Reservations, Equality and the Constitution – III: State of Kerala v N.M. Thomas and the Transformation of Equality

At the beginning of 1976, the meaning of the 14-15-16 equality code seemed to be reasonably well-settled. Twenty-six judges over an equal number of years had consistently affirmed that affirmative action was constitutional by virtue of the existence of Articles 15(4) and 16(4), both of which operated as exceptions to the equality and non-discrimination provisions of 15(1) and 16(1). Not just the outcomes, but judicial reasoning as well, as we have seen, relied upon a colour-blind vision of equality, one that considered any kind of classification on the bases of prohibited categories (race, religion, sex etc.) as presumptively unconstitutional. This idea, in turn, was grounded upon the belief that in distributing a benefit or burden, government must treat individuals as  individuals, and not as members of groups.

The lone dissenting voice had been Justice Subba Rao’s, in Devadasan. And in 1976, a seven-judge bench, in State of Kerala v. N.M. Thomas, adopted that view in full, and in doing so, entirely repudiated existing precedent. As a transformative decision, N.M. Thomas stands alongside Kesavananda Bharati and Menaka Gandhi in our constitutional history: it not only changed the constitutional understanding of reservations, but in doing so, transformed the deep foundations of the idea of equality that the Constitution commits us to.

In N.M. Thomas, a governmental order granted provisional promotions to members of Scheduled Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such promotion, along with a two year grace period for them to gain such qualifications. This was challenged. The key contention of the aggrieved parties was that the classification was clearly void under Articles 16(1) and (2), and not covered by Article 16(4). Under existing precedent, this ought to have been a simple case. If Article 16(4) did not apply, then special provisions for SCs and STs clearly did violate Articles 16(1) and (2).

Not so, held the Court. In Paragraph 31, the Chief Justice Ray, writing the judgment of the Court, held:

“The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. “

Consequently:

“The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration.” (Para 37)

The Court thus holds that Article 16(1)’s conception of equality itself includes remedial action to ensure due representation for hitherto excluded classes. No longer, then, is equal treatment to be accorded to individuals; the Court adopts the group-subordination idea of equality, one that locates the site of historical discrimination as the group, and seeks to remedy that by targeting groups.

That said, the bar of 16(2) remained, which expressly listed caste as a prohibited basis of classification. The Court’s answer was to accept that 16(2) would instantaneously void such classification (Paragraph 37), but then to perform a sleight of hand (one that would be repeated subsequently) by holding that Scheduled Castes were not the same as castes (under 16(2)), and could fairly be called “backward classes” within the meaning of 16(4) (Para 43) This raises a troubling issue for those situations where this sleight of hand will not be available to the Court. What, for instance, can the Court say if Government wishes to make special provisions in employment for women? 16(2) expressly prohibits classification on the basis of sex, and purely on the logic of N.M. Thomas, 16(2) continues to operate as an absolute bar.

In any event, the fundamental shift in N.M. Thomas is this: 16(4) no longer operates as an exception to 16(1), allowing the government limited powers to do what it would otherwise be prohibited from doing by virtue of 16(1), but now exists as “one of the methods of achieving equality embodied in Article 16(1).” (Paragraph 46) But this necessarily involves a shift in the nature of equality itself, because until now, 16(1) and 16(4) were considered to embody differing visions of equality: 16(1) was about individuals, and 16(4) – textually – about remedial measures targeted at historically discriminated groups. And now it is that latter logic that governs both 16(1) and 16(4).

On what basis does the Court deal with precedent in such cavalier fashion? The majority does not say, and it is in Justice Mathew’s concurring judgment that we find an articulate defence of the new principle of equality. Drawing upon sources as diverse as Brandeis and Laski, Justice Mathew conceded that Article 16(1) was about equality for individuals – equality of opportunity. But equality of opportunity, he argued, meant that in distributing a benefit or burden, the State must set those criteria for selection that “people from all sections of the society have an equal chance of satisfying them.” (Paragraph 84) To sharpen the idea, he drew upon Bernard Williams’ famous example: in a certain society, the most prestigious role is that of the warrior, which requires great physical strength. Hitherto, recruitment for this role has been – formally – solely from the wealthy/propertied classes. A reform movement succeeds in removing the formal barrier in favour of equal competition. Nothing changes, however, because the rest of the population is so undernourished by reasons of poverty, that they do not pass the physical requirements of the recruitment test. In other words, the criteria for selection has been changed from wealth to strength, but it so happens that – for obvious reasons – the poor also happen to be weak.

For Justice Mathew, this is not equality of opportunity. According to him: “To give X and Y equality of opportunity involves regarding their conditions, where curable, as themselves part of what is done to X and Y and not part of X and Y themselves.  Their identity for this purpose does not include their curable environment, which is itself unequal and a contributor of inequality.” (Paragraph 87)

This is a crucial philosophical point (and the connection to Amartya Sen will be obvious to everyone). Much turns upon what exactly “where curable” and “curable environment” mean, but broadly, Justice Mathew’s point is that equality of opportunity makes no sense without taking into account the structural conditions into which people are born and grow up in, and which define, limit or otherwise profoundly affect the formulation and achievement of their goals.

Justice Mathew then reconciled his argument that Article 16(1) was about individual equality with upholding group classification: any classification, he argued, must group together individuals sharing certain characteristics. Categorization into Scheduled Castes/Tribes, then, was no more than a convenient method for identifying individuals who did suffer from those structural conditions that required affirmative action. (Paragraph 108) Crucially, for Justice Mathew, Article 16(1) is not about group equality. It is about effective individual equality, which is to be achieved by using the method of group-identification. The obvious problem with this is the two-pronged evil of over-inclusiveness and under-inclusiveness. As soon as you abandon separate analyses of each individual case for group-categorization, it is inevitable that certain members of your chosen group will not be “backward” (over-inclusiveness), and certain members who do not fall within the group will be “backward” (under-inclusiveness). This makes the definition of the “group” absolutely critical, and as we shall see in subsequent cases, it is this issue that would emerge as a political and constitutional battleground. In N.M. Thomas, however, Justice Matthew was oddly unconcerned with this very real problem.

Justice Krishna Iyer, in his concurring opinion reiterated the shared vision of equality embodied in Articles 16(1) and 16(4), and added a further ground for the argument by invoking Article 46, of the Directive Principles. While the Directive Principles are, of course, unenforceable, Justice Iyer argued that the interpretation of Articles 16(1) and 16(2) must be such that gives effect to Article 46. In this way, by invoking the Directive Principles as background, structuring values, helping us select which conception of equality Article 16 embodied (colour-blind, or group-subordination, or something else), Justice Iyer provided the constitutional grounding to Justice Mathew’s philosophical vision of equality.

Justice Fazl Ali, in his concurrence, moved away from Justice Mathew’s individual-centric notion in categoric terms. While adopting the same philosophy of equal opportunity, he held:

“Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same.” (Paragraph 193)

This, as we have seen, is the classic statement of the group-subordination theory of equality. He then adopted Justice Iyer’s argument about the interpretation of Articles 14 and 16 being determined by the Directive Principles (Paragraph 200). Note, however, that Article 46 categorically refers to weaker “sections” of society. If, therefore, the interpretation of Article 16(1) is grounded in Article 46, then it cannot but be taken to be embodying the principle of group-subordination.

The last concurring judgment was Justice Beg’s, but he only concurred in the judgment, siding with the majority on the ground that the present case was covered by Article 16(4). On the reasoning, he disagreed, sticking to the past interpretation of 16(4) remaining an exception to 16(1).

Justices Gupta and Khanna dissented. Justice Gupta held that Scheduled Castes were, indeed, “castes” within the meaning of 16(2); and that any event, the manner of distinction was not one that was permitted by 16(1). In a detailed dissent, Justice Khanna reaffirmed that 16(4) was an exception, and the legitimating ground for reservations for SCs and STs was found in, and limited to, 16(4). In particular, he held:

“There is no scope for spelling out such preferential treatment from the language of Clause (1) of Article 16 because the language of that clause does not warrant any preference to any citizen against another citizen.” (Paragraph 57)

Which, as we can see, if framed in explicitly individualistic language. Hammering the point home, he observed in the very next paragraph:

“Equality of opportunity in matters of promotion must mean equality between members of the same class of employees and not equality between members of separate, independent classes.” (Paragraph 58)

In other words, an express rejection of the group subordination principle. And to make it even clearer, he went on to hold:

“What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State.” (Paragraph 60)

N.M. Thomas, thus, leaves us with a deeply divided Court, one in which each of the seven judges wrote his own opinion, and came to deeply divergent conclusions on a number of issues. Let us try to sum up:

(1) A majority of five judges concurred in the judgment, and two dissented

(2) A majority of four judges held that 16(4) is not an exception, but an “emphatic restatement” of 16(1) – and thus, 16(1) itself permits reservations and preferential treatment

(3) Two judges – Fazl Ali and Krishna Iyer JJ – by invoking Article 46, specifically adopted the group-subordination principle of equality in their interpretation of Article 16(1)

(4) Four judges (or five, depending on how one interprets Ray CJ’s judgment, which seems to adopt both principles) – that is, Mathew and Beg JJ.’s majority opinions, and Khanna and Gupta JJ.’s dissents – while coming to different conclusions, nonetheless maintained the individual-centric view of Article 16(1)

In essence, therefore, while N.M. Thomas changes the idea of of equality under 16(1), a bare majority upholds the deep philosophy of individual equality that forms the ultimate philosophical basis of it. This, essentially, makes Justice Mathew’s opinion controlling. The point of the Article 16 scheme – after Thomas, therefore – is not to achieve group equality qua groups, but to achieve individual equality, and the use of groups is a convenient mechanism to achieve the end goal of individual equality. This, indeed, comports well with the founders’ vision (as we have seen in previous posts) of an end-goal of a society in which class and other such markers become entirely irrelevant. What Justice Mathew understands is that to achieve a colour-blind society, you might need to take colour into account on the way, in order to ameliorate the continuing negative effects of structural inequalities; the arguments are not novel. Feminists have regularly argued that the end-goal of a society in which gender is irrelevant can only be achieved by taking gender into account on the way, and bringing women to a position where formally making gender irrelevant really means actually making gender irrelevant; and the same with race. What is crucial to note is that none of these arguments lose their ultimate goal of emancipating the individual. Classification is a means to an end, not an end in itself.

The distinction is important, and not just simply to understand what kind of equality our Constitution commits us to, and whether it is a vision that we find inspiring and worth believing in. It is also important because – as we shall see – debates about identifying beneficiary groups (the Mandal Commission and beyond), the bitter fight over the “creamy layer”, and ultimately, how far we are willing to go with reservations (for instance, over-inclusiveness and under-inclusiveness aren’t issues at all if your goal is objective is group equality) – depend upon whether our goal is to make groups equal to each other (and thus, reinforce group identity), or to make individuals equal to each other (and thus, ultimately, dissolve group identities). After N.M. Thomas, the latter view had an edge. In subsequent posts, we shall examine how it would fare in the fraught and divided coming years.