In the last post, we saw how State of Kerala v. N.M. Thomas marked a shift in the conception of equality that the Constitution is committed to. It did so by abandoning the existing individualistic, colour-blind equality model that presumptively proscribed all classifications on prohibited bases (sex, race, caste etc.), whether for benign purposes or otherwise, unless explicitly permitted. We also noticed, however, that the seven-judge N.M. Thomas bench split in a manner that left it entirely unclear what the new model was. What four judges (a majority) did agree on was that Article 16(4) was not an exception to, but a facet of Article 16(1) – that is, the justification for affirmative action could be found within the conception of equality of opportunity under 16(1), and by extension, within the broader conception of equality under Article 14.
There are, however, at least two distinct ways in which Article 16(1) can be interpreted, and no clear consensus emerged in N.M. Thomas on that point. Both interpretations are sensitive to group inequalities, but in different ways. Under the first interpretation (to fix ideas, let it remain the “group subordination principle”), the point of affirmative action is to achieve equality between groups. In other words, the site of constitutional action is the group, and the right (to equality) that is being vindicated is that of the group’s. The reason for this approach is that historically, injustice has been meted out to groups (women, dalits etc.), and thus, it makes sense for remedial action to be focused on groups.
The second interpretation is also sensitive to the realities of historical discrimination, but even so, it insists that ultimately, the right to equality is an individual right. However, since historically, the individual has been discriminated against in virtue of her membership of a particular group (e.g., as a woman, or as a Dalit), it might be necessary to take group identity into account, in order to achieve truly effective ameliorative measures that take us towards an eventual position of genuine equality for all persons.
Notice that both these approaches support affirmative action, based on a historical understanding of the way in which discrimination has worked in our society, but for radically different reasons. The first – group-subordination approach – is geared towards preserving group identities by equalising groups qua groups. The second approach aims at eventual elimination of group identity, accepting group-based classifications as a necessary set of evils on the road to a society in which all individuals are brought to a position of genuine equality. The debate is not merely academic because, as we shall see, it deeply affects the models of reservation and affirmative action that are justified under Articles 15 and 16.
While N.M. Thomas left this basic philosophical point unresolved, this – and many other questions – came to a head in Indra Sawhney v. Union of India, decided by a nine-judge bench in 1992. Indra Sawhney saw a plurality opinion, written by Jeevan Reddy J. for himself and three other brother judges, and four separate concurrences. Indra Sawhney, therefore, has no majority opinion, and so, special care must be taken in determining what propositions, precisely, the case stands for.
Before diving into the case, however, in light of the sheer number and complexity of the issues raised, a brief historic background is necessary.
Reservation in India has a long history. Article 16(4) permits the government to make reservations in the matter of employment for backward. The first question which arises, therefore, is “what constitutes a backward class?” To answer this question, the Kalelkar Commission was set up in 1953. The commission identified six markers to identify a backward class, these being: 1) Traditional occupation and profession, 2) Literacy, 3) Population, 4) Distribution and concentration, 5) Social position in the caste hierarchy and 6) Representation in the Govt. service, or the industrial sphere.
The findings of the commission were criticized by a Central Government memorandum in 1956. Subsequently, in 1961, the Central Government agreed to let each State Government draft its own list of backward classes. This was carried out by individual State Governments.
In 1979, by a Presidential Order under Article 340 of the Constitution, the Mandal Commission was set up to identify backward classes. After an exhaustive survey, the Mandal Commission came up with eleven indicators of “social and educational backwardness,” which, in turn, were grouped into three broad headings – social, economic and political. Social indicators included castes/classes considered backward by others, caste/classes depending upon manual labour for their livelihood, castes/classes with low average ages of marriage and castes/classes with a low proportion of female workforce. Educational criteria included percentages of school attendance, dropouts and matriculation. Economic criteria included value of family assets, number of families living in kucha houses, distance of sources of drinking water, and households having taken consumption loans. Social indicators were given three points each, educational indicators two points, and economic indicators one point. The total points, therefore, amounted to 22. All castes/classes that had a score of above eleven, were deemed to be “socially and educationally backward.” The commission then used some further criteria to identify “other backward classes,” and also from the non-Hindu section of the population. In the final analysis, the Mandal Commission found that the percentage of OBCs in India was 52%. In the view of the Supreme Court decision (Balaji) limiting reservation to less than 50%, the Commission recommended a 27% reservation for OBCs in addition to the existing 22.5% reservation for SCs and STs. Subsequently, there were two Government Memoranda (an executive order) which enforced these recommendations, and provided that Backward Classes would mean “those castes and communities” that were common to the Mandal Commission report, and various State Government lists. The Mandal Commission report proved to be bitterly controversial, stoking tensions all over the country, and eventually, it was these memoranda that were challenged. A nine-judge bench was constituted, and Indra Sawhney came to Court.
One major sticking point was the use of caste to identify a 16(4) backward class, and this itself had had a troubled history. In Balaji, the Court had held that caste cannot be the sole, determining factor for identification of backward class. Subsequently, though, in P. Rajendran v. State of Madras, the list of “other backward classes” simply included a list of castes. The Court held that although a selection based purely on caste would fall foul of Art. 15(1), if it could be shown that the castes which were selected were, in fact, socially and educationally backward, 15(4) would apply, and the selection would be saved from invalidity. In a certain sense, therefore, P. Rajendran can be seen to have watered down the judgment in Balaji to an extent. This was followed in a number of cases such as Triloki Nath, Periakurappum v. State of Tamil Nadu and State of Andhra Pradesh v. Balram. However, in State of Uttar Pradesh v. Pradip Tandon, Ray C.J. came up with a very different interpretation: he argued that caste or religion could not be made a basis for identification under Art. 15(4), as this would stultify the operation of Art. 15(1). This judgment, of course, seemed to go against the stare decisis evolved in Rajendran and beyond – and N.M. Thomas then added yet another twist to the tale by holding that the word “caste”, as a proscribed basis under 16(2), was not the same “caste” as the “caste” in “Scheduled Caste” – the latter being a purely administrative category. The Indra Sawhney Court, faced with these precedents, was called upon to resolve the role of caste and its relationship with class in the context of affirmative action, once and for all.
Before we delve into the core of Justice Reddy’s plurality opinion, one last point remains to be noted. In his opinion, Justice Reddy cites – and discussed in some detail – four American cases on affirmative action: DeFunis v. Odegaard, Regents of the University of California v. Allan Bakke, Fullilov v. Philip M. Klutznick and Metro Broadcasting Inc. v. Federal Communications Commission.
In Defunis, a percentages of seats in the University of Washington Law School were reserved for racial minorities. Although by the time the case went up to the Supreme Court, Defunis, who had filed the case, was in his final term, and therefore the question had become academic, Douglas J. still wrote an extensive judgment. The crux of his argument was that the Equal Protection Clause does not require Law Schools to admit students purely on the basis of testing results and undergraduate grades; on the other hand, it is equally permissible to view a candidate’s prior record, including the barriers he had to overcome to arrive at where he is. Taking the example of a Black student who had pulled himself out of a ghetto to arrive at Law School, and the son of a wealthy alumnus who got into Harvard, Douglas J. said that although, for obvious reasons, the Harvard man might achieve better grades throughout Law School, in the long run, the Black student might have a more successful career because of the perseverance and undoubted talent that had seen him even reach Law School. This logic was rejected in Regents of the University of California v. Allan Bakke, however, where again, the issue was regarding racial reservations in a University. By a narrow margin (5:4), the Supreme Court held racial quotas to be unconstitutional, and applied judicial “strict-scrutiny” to race-based classifications, holding it justified on the narrow ground only, of achieving a diverse student body.
The other two cases were business-related. In Fullilov v. Philip M. Klutznick, by an Act it was required that at least 10% of federal funds granted for local projects must be utilized in procuring supplies from business owned by minority groups. A challenge to this Act failed, the Court holding that the legacy of unequal treatment now justified differentiation and positive discrimination. Similarly, in Metro Broadcasting Inc. v. Federal Communications Commission, minority groups were given certain preferences in the matter of distribution of licenses. The Court held that benign race conscious measures are constitutionally permissible even if they are not designed to compensate victims of past governmental or societal discrimination so long as they serve important governmental objectives and are substantially related to achievement of those objectives.
What is particularly remarkable about the Court’s survey of American law was the one judgment it omitted to cite, decided three years before, in 1989: City of Richmond v. Croson, which was in direct opposition to Fullilov and Metro Broadcasting (the difference tracks complicated issues of American federalism that our irrelevant for our purposes here). Croson prohibited race-based classifications aimed at ameliorating past societal inequalities, holding that any such remedial action would have to be strictly limited to intentional and specific discrimination.
In other words, by citing four cases out of which three were largely sympathetic to affirmative action, but out of which one was a moot judgment, and omitting the hostile case of Croson, the Court painted a skewed picture of American law, one that was more sympathetic to group-based philosophies of affirmative action than actual American law. Perhaps it did so to set the stage for its own group-based discussion, that we shall come to in the next post.