Reservations, Equality and the Constitution – V: Indra Sawhney

In Indra Sawhney, Justice Jeevan Reddy wrote an opinion for himself and three other judges. We have already seen how his account of American affirmative action cases re-oriented the discussion towards greater support for the group-subordination principle of equality, than actually existed in the United States. Let us now examine the substance of his opinion.

Recall that the Mandal Commission had proposed an eleven-indicator test for determining “social and educational backwardness”, these indicators being social, economic and educational; and the units of analysis were castes/classes. On the application of these indicators, it selected certain castes as coming within the “socially and educationally backwards” classes category, which would make them eligible for reservations. It found that the sum total of Scheduled Castes, Tribes and Other Backward Classes came up to 52% of the population – but in light of the Balaji 50% dictum, it recommended a 27% reservation for OBCs, and a 22.5% reservation for SC/STs. In the government memoranda planning the implementation of the Commission’s recommendations, special solicitude was provided to economically weaker applicants from within the stipulated backward classes.

In the constitutional challenge, eight distinct issues were framed for resolution, which the Court expanded to eleven. Not all of the issues are germane to our discussion; let us therefore take the relevant ones, in order:

First, the Court considered whether Article 16(4) was an exception to 16(1), or a facet of it. This, as we have explained before, is the heart of the jurisprudential enquiry concerning the meaning of equality that the Constitution commits us to. In paragraph 56, the Court stated: “Clause (4) of Article 16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by Clause (1).”

If group-based reservations, then, are an instance of 16(1)’s abstract guarantee of the equality of opportunity, then it becomes abundantly clear that the conception of equality is the equality of groups, not of individuals. The N.M. Thomas shift, therefore, was crystallised in Indra Sawhney. This, in turn, led the Court to the inescapable conclusion that 16(1) itself permitted reservations (paragraph 58) – thus crystallising another important conception that, in a sense, flows from the principle of group-subordination: the equality ideal is not formal, but outcome-based. The observation is hammered home by the fact that the Court twice explicitly rejects Powell J.’s opinion in Bakke, and says it is adopting the dissents’ view. As we explained in the last post, it was Powell J.’s opinion that first – in American constitutional history – directly enunciated the colour-blind vision of equality; and its rejection, therefore, is deeply symbolic.

The next set of questions before the Court pertained to the identification of “backward classes”. The Court went into a detailed analysis of precedent, the Constituent Assembly Debates, and pre-Independence history to analyse the uses of the terms “caste” and “class”. It concluded that:

“A caste is nothing but a social class – a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class.” (Paragraph 82)

In the same paragraph, the Court went on to examine the caste-occupation-poverty “nexus” that existed throughout India: that is, your caste determined the occupation you were socially entitled to pursue, and that in turn determine your economic status – a circle from which it was almost impossible to break out. The Court then made the crucial observation:

“It must be eradicated. That is the ideal – the goal.” (Paragraph 82)

Recall that the group-subordination principle, in recognising that groups have been the historical locus of discrimination, and that therefore, redressal effects need to be focused on groups, is nonetheless itself agnostic about whether or not group identity is something that ought to be preserved or eliminated. The difference becomes obvious if we consider – for instance – two rival schools of feminist thought. While both schools were focused on eliminating structural inequalities between men and women, and to do so through positive action in favour of women (group subordination par excellence), their goals were different: while one school of thought denied that relevant physical differences between women ought to bear any social meaning, and so ought to be downplayed and ignored (as Monique Wittig famously argued, channeling Simone de Bouevoir “One is not born a woman; one becomes one“) – the other school celebrated those very differences – e.g., pregnancy and child-bearing, and celebrated a female identity based upon those differences as distinct from the male. As a shorthand, the dispute was between those who advocated “sameness”, and those who advocated “difference”. The end-goal for the former was a society in which gender would cease to have any meaning at all, while for the latter, it was a society in which gender differences would be celebrated, with each considered equally worthy.

When, therefore, we are considering equality from a group subordination principle, it becomes important to ask what the end goal is. If the goal is to achieve a society in which group identity is equalised and strengthened, then affirmative action almost becomes an end in itself, as it is basically a concrete method of bringing about group equality. On the other hand, if the goal is to achieve a society in which group identity is eliminated, then affirmative action is only an essential means to bringing about that result – a necessary evil, so to say.

Notice, at this point, how this latter vision of equality, and colour-blindness share a common goal. But what the group-subordination vision, of this sort, understands is that to get to eventual colour-blindness, you must go through group-based affirmative measures. And it is this particular vision of group subordination that the Court adopted, as we have discussed above.

But this leads us to an obvious conundrum. If the goal is to achieve colour-blindness, and reservations are a means to that end, then Article 16(1) cannot be about group equality after all. Colour-blindness is a deeply individualistic concept. This evident tension, unfortunately, goes unrecognised by the Court, in Indra Sawhney, and, for that matter, beyond. Indeed, it is hammered home when the Court, in subsequent paragraphs, expressly lent its imprimatur to using caste as a means for identifying “backward classes” (Paragraph 83).

The tension becomes more pronounced when the Court moved on to the “creamy layer” argument. It held – perfectly logically – that to those members of “socially backward classes” who are not actually socially backward, reservations would not apply, because they lacked the features that the “class” needed to have, in order to be a homogenous grouping. But the Court then observed: “This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes.” (Paragraph 86)

This is utterly bizarre. The entire thrust of the Court’s argument, thus far, had been that using caste as the basis for identifying backward classes was justified because, after all, castes were goupings, communities and so on – just like classes. The manner in which the Court got around the 16(2) prohibition on caste-based discrimination was precisely by differentiating between “castes” in 16(2) qua castes, and “castes” as standing in for “classes” under 16(4). But if that is true, then there is no logical reason for withholding the extension of the creamy layer test from Scheduled Castes. More problematically, it makes a mockery of the Court’s claimed ultimate goal as being colour-blindness, because in rejecting the creamy-layer test, instead of making backwardness as its criterion for reservation (with caste being a marker of identification), it makes caste as a criterion in and of itself – thus inevitable entrenching caste-based identities.

This tension is further evident when the Court had to examine the Balaji 50% limits for reservations. Notice that one it had been accepted that 16(4) was a facet of 16(1), the Balaji 50% logic was entirely wiped away, because that had been based on 16(4) being an exception, and on the argument that the exception cannot grow to swallow the rule. Nonetheless, the Court contrived to maintain the 50% rule:

“Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter.” (Para 94) 

But this will not do. The Court simply refuses to explain why it is “reasonable” that reservations not exceed 50%. What made it “reasonable” in Balaji was precisely that it was an exception to a general rule of equality. Now that that is no longer the case, why is 50% relevant at all? The Court does not explain.

Yet things were to become even more confusing, because then, in discussing the validity of the carry-forward rule, the Court observed:

“It must be remembered that the equality of opportunity guaranteed by Clause (1) is to each individual citizen of the country while Clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% an year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.” (Para 96)

In other words, after affirming that 16(4) was a “facet” and an “emphatic restatement” of 16(1), the Court went on to hold that (1) and (4) were conceptually distinct, and had to be “balanced” against one another – a classic instance of the Balaji line of reasoning, which NM Thomas had repudiated and the Court had endorsed.

Following this, the Court held invoked Article 335’s requirement of efficiency in the services to disallow reservations in promotions (paragraph 107); it observed that by definition, reservations meant selecting a “less meritorious” person (para 111), and that consequently, there may be no reservations in certain highly technical or specialized posts (para 112).

A compendious summary of the findings in this exhaustingly long judgment are set out in Paragraph 121. Altogether, Indra Sawhney is marked by a series of conceptual slippages that leave India’s reservations jurisprudence in a state of considerable doubt. The Court holds that 16(4) is a facet of 16(1), but in the same breath, holds that 16(1) embodies individual equality, that 16(4) embodies group equality, and that that the two must be balanced. But if that is the case, then 16(4) simply cannot be a facet of 16(1) – the two conceptions of equality – at a particular time t – are opposed to each other. If 16(4) is a facet of 16(1), then why does the 50% rule still remain? If the end-goal is color-blindness, then why isn’t the creamy-layer rule extended to explicit caste-based reservations? The Indra Sawhney judgment gives us a series of outcomes, but provides no underlying, coherent philosophy that explains to us why we have reservations, and what we are trying to achieve, in the long run, through this system. It is perhaps unsurprising, then, that twenty years after, reservations and caste remain entrenched and deeply divisive – the Supreme Court, with its judgment, provided strong motivation for that.