In the last post, we noted that in Nagaraj, a basic structure challenge to Articles 16(4A) and 16(4B) was rejected on the ground that the abstract concept of equality guaranteed by the basic structure was not “damaged or destroyed” by concrete tweaks to the mechanism of reservations. That was not, however, the end of basic structure challenges to affirmative action amendments. In 2005, via the 93rd Amendment, Article 15(5) was inserted into the Constitution. It read:

Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Brief background may be apposite. Textually, there is a degree of overlap between Articles 15(4) and 15(5). Recall that 15(4) permits the State to make special provisions for the advancement of socially and educationally backward classes, or for SCs/STs, notwithstanding anything in Article 29(2). 15(5) adds everything that follows after the “in so far as…”. The reference to Article 19(1)(g) is a response to the judgment in T.M.A. Pai Foundation, which held that the running of an educational institution falls within Article 19(1)(g)’s guarantee of the freedom of profession. In bringing private educational institutions within the ambit of reservations, the Amendment covers a possible 19(1)(g) challenge by excluding its application. And lastly, the Amendment excludes from its ambit, minority educational institutions, that have their own set of constitutionally guaranteed rights under Article 30.

Under the authority of Article 15(5), Parliament passed what came to be known as Act 5 of 2007. The Act laid out the specifics of reservations: simplifying greatly, it provided (subject to certain exceptions that need not concern us here), 15% reservation for SCs, 7% for STs, and 22% for OBCs (bringing it up to a total of 49%) per academic year. This was applicable to “Central Educational Institutions”, that is, institutions that had been set up under a statute, were financially aided by the government, or were in some other way under the control of the government. The Act also defined “other backward classes” as “socially and educationally backward classes of citizens, that were to be determined by the central government”.

The constitutionality of Act 5 was challenged, and Article 15(5) was challenged as a basic structure violation. The case was heard by a Constitution Bench, in Ashoka Kumar Thakur v. Union of IndiaA bewildering variety of arguments were made before the Court; although the Court unanimously upheld Article 15(5), four different opinions were issued, running into more than two hundred and fifty pages. Any analysis, therefore, will suffer from omission, but let us, in any event, start with the opinion of the Chief Justice.

Some of the major arguments attacking Article 15(5) focused on how it destroyed the scheme of equality running through Articles 14-15-16; how the use of caste to identify “other backward classes” was unconstitutional; how the exclusion of the creamy layer (following Indra Sawhney) was unconstitutional; and how the exclusion of Article 30 minority institutions also violated the principle of equality.

The Chief Justice first examined the basic structure argument. As a preliminary matter, since the challenge was in the context of Act 5, which was only applicable to State institutions, that part of Article 15(5) which referred to private, unaided educational institutions was excluded from the scope of the enquiry (it so happens that it is presently being litigated under another basic structure challenge). In other words, Ashoka Kumar Thakur was restricted to the question of whether Article 15(5), insofar as it applied to State institutions, violated the basic structure.

Much like in Nagaraj, the Chief Justice referred back to Kesavananda Bharati, and distinguished between the abstract concept of equality, and specific conceptions of it (although he termed them as “facets of equality”).  While an amendment that sought to damage or destroy the concept itself was void, one whose objective or effect was only that “the facets of the principle of equality… be altered…” was valid. Or:

“The larger principles of equality as stated in Article 14, 15 and 16 may be understood as an element of the “basic structure” of the Constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way, may be changed within the constraints of the broader principle. The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity.” (Paragraph 93)

Clearly, then, what is at stake is the level of abstraction at which an amendment address and modifies equality. It would seem, from Nagaraj and from observations such as these, only an Amendment that brings about a state of affairs that could not be reasonably covered by any conception of equality, would fall foul of the basic structure. Since Article 15(5) was at best a “moderate abridgement or alteration” of the principle of equality, the basic structure challenge failed. (Paragraph 94)

Arguments that Articles 15(4) and 15(5) were contradictory, and that Article 15(5) unconstitutionally excluded minority institutions, were also swiftly rejected. That brought the Chief Justice to the constitutionality of Act 5 itself. It was argued, first, that the identification of socially and educationally backward classes had been done on the basis of caste, and that this was impermissible. After surveying a number of precedents on the issue (most of which have been discussed on this blog), the Chief Justice concluded: “”Caste” is often used interchangeably with “class” and can be called as the basic unit in social stratification.” (Paragraph 123) Nonetheless, after consulting various authorities on the subject, he went on to observe:

“A social class is therefore a homogeneous unit, from the point of view of status and mutual recognition; whereas a caste is a homogeneous unit from the point of view of common ancestry, religious rites and strict organizational control. Thus the manner in which the caste is closed both in the organizational and biological sense causes it to differ from social class. Moreover, its emphasis upon ritual and regulations pertaining to cleanliness and purity differs radically from the secular nature and informality of social class rules. In a social class, the exclusiveness would be based primarily on status. Social classes divide homogeneous populations into layers of prestige and esteem, and the members of each layer are able to circulate freely with it.” (Paragraph 137)

Specifically, the Chief Justice went on to hold that the identification of OBCs was done through a variety of socio-economic criteria, and thus wasn’t “solely” on the basis of caste. Or, to put it more simply, even if certain castes were inserted into the OBC category qua castes, they were a socially and educationally backward group, and not because they all were part of the same, defined caste. Caste, that is, to use the words of a previous case, was a “convenient shorthand” to identify the class.

The argument, however, is problematic, because it simply ignores the fact that there is a reason why Article 15(1) prohibits discrimination on the basis of caste. Think of the following hypothetical. A Constitution – like ours – prohibits discrimination on the basis of race, and has an enabling provision for the advancement of socially and educationally backward classes. The government establishes a quota for “blacks, Asians and Hispanics”, and argues that they’re all classes, and that they’re all backward – and that race is only a convenient shorthand for identifying them. This is a disingenuous argument. That is not to say, however, that that settles the issue: a prohibition against discrimination on the basis of race does not necessarily prohibit classification on the basis of race, motivated by benign objectives. That is the key question that the Chief Justice should have addressed. Instead, he dodged it, and held that although Other Backward Classes comprise of castes, yet, the castes are picked because they are classes, and not because they are castes. Again, this simply ignores the fact that the framers had something in mind when they wrote Article 15(1) into the Constitution.

The Chief Justice’s logic, however, led inexorably to his holding on the issue of the creamy layer. Excluding the creamy layer would make little sense if your analytical unit is the caste, because one’s caste identity exists as a matter of birth, independent of all other factors. If the unit is class, however, then the creamy layer – that is, persons belonging to an otherwise backward caste who are not themselves backward – do not form part of the backward class (which, by definition, must be backward), and therefore must be excluded. Hence, the Chief Justice observed:

It is to be understood that “creamy layer” principle is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward. They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the “Creamy Layer” principle is not applied, it could easily be said that all the castes that have been included among the socially and educationally backward classes have been included exclusively on the basis of caste.” (Paragraph 149)

Or: Backward caste (unconstitutional selection) – creamy layer = backward class (constitutional selection).

The Chief Justice then observed:

By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. ” (Paragraph 150)

This casts further light upon the individual equality vs group subordination principle that we have discussed before. The Court seems to believe here (contrary to prior pronouncements) that notwithstanding the framing of Articles 15(4) and 15(5) as group rights, what is at stake is actually an individual right that one gains through contingent membership in a group.

The matter becomes somewhat complicated, however, because the Chief Justice went on to reject the operation of the creamy layer in the case of Scheduled Castes and Scheduled Tribes:

“Creamy layer” principle is one of the parameters to identify backward classes. Therefore, principally, the “creamy layer” principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves.” (Paragraph 161)

This suggests – perhaps unsurprisingly – that as far as SCs and STs go, the principle of equality is indeed group-subordination: the historical site of injustice is the group, and it is the (undifferentiated, externally identified) group that is now the subject of affirmative action. This leads to the interesting conclusion that within the same constitutional provision, two different principles of equality (for SC/STs and OBCs) are at work.

The Chief Justice was also invited to incorporate the American affirmative doctrine of strict scrutiny, which he rejected. A full comparison would be beyond the scope of this post. We may note, in conclusion, Justice Raveendran’s brief concurrence, which corroborates the individual-centric analysis of the theoretical justification for OBC reservation: the ultimate objective, he observed, was a casteless society. (Paragraph 13) Caste was being taken into account for reservations only to hasten its ultimate eradication. The eradication of caste is an aim that is notably different from achieving an equality of castes. Likewise, the group subordination principle normally (though not exclusively) aims at equalising the relations between groups, and not necessarily eradicating group identity itself.