The concurring opinions of Pasayat J. and Bhandari J. do not, in substance, depart from the holding in the Chief Justice’s opinion. Both opinions emphasize that reservations for socially and educationally backward classes must remove the creamy layer, if they are to be constitutional. This, as we discussed in our last post, shows that the ultimate subject of analysis, as far as SEBC equality goes, is not the backward class, but the individual. And indeed, Bhandari J. says as much in his opinion.
Two aspects of Bhandari J.’s opinion stand out. First, he severs “private, unaided institutions” from Article 15(5), holding that by a complete exclusion of Article 19(1)(g), subjecting private, unaided institutions to reservations violates the basic structure. Whatever the merits of this argument, it is important to note that no private institution appeared in this case, the question was not before the Court, and the issue was not argued. For a judge to rule on an issue that is not before the Court and is not argued by the lawyers, in an adversarial legal system, is judicial bad form.
Secondly, and more pertinently, Bhandari J. cites a raft of constituent assembly debates, as well a series of precedents, to argue that the ultimate goal of the Constitution is to achieve a casteless society, and the constitutionality of reservation policies must be judged by that standard. In so doing, he seeks to reject a caste-based identification of socially and educationally backward classes, and shift to an economic test, although he cannot do so because of the binding opinion of the nine-judge bench in Indra Sawhney.
The observations, however, are a good point of departure to examine the last remaining issue. As we discussed in the last post, it was argued before the Court that the American doctrine of strict scrutiny ought to be applied to reservations. As we saw, the Chief Justice rejected the proposition out of hand, on the ground that the American and Indian constitutions are drafted differently. This, however, is not reason enough in itself, because the American Constitution makes no mention of strict scrutiny – it is entirely a judicial creation. In order to understand the stakes, then, a brief digression into American doctrine would be appropriate.
The Fourteenth Amendment to the American Constitution, passed in the aftermath of the Civil War, guarantees to all citizens “the equal protection of laws”. The question then becomes: what constitutes constitutionally impermissible unequal treatment?
American courts answer this question by subjecting classifications to three different tiers of scrutiny, based on the manner of the classification in question. The first level is “rational review” scrutiny. A classification is permissible as long as the government can establish a goal with which it is rationally connected (notice the similarities with a standard Article 14 analysis).
The second level is “intermediate scrutiny”. This is primarily used in cases of sex discrimination. Intermediate scrutiny requires the government to show a “substantial interest”, that is “reasonably” served by the classification in question. In many of the sex equality cases, sex-based classifications have been invalidated because they have been found to be based on outmoded stereotypes about the role of men and women in society (such as, for instance, that women are required to be the primary care-givers) – the perpetuation of which is not taken to be a goal that the government has a substantial interest in.
The third level is “strict scrutiny”, which applies to “suspect classes”, such as race. A race-based classification, then, must demonstrate a compelling governmental interest, and must also be narrowly tailored – that is, it must be the least restrictive way of achieving the compelling interest at stake. There has been bitter controversy between the liberal and conservative wings of the American Supreme Court as to whether strict scrutiny ought to apply to race-based classifications that are remedial or beneficial in nature, such as affirmative action policies; as of now, because of a conservative majority on the Court, all race-based classifications, no matter what their aim, are subjected to strict scrutiny, and consequently, affirmative action programs have been severely cut-back, and quotas held unconstitutional altogether.
The basic idea behind heightened scrutiny is that certain classifications – such as those based on race – are inherently harmful because either they stigmatize individuals, or that they fail to respect individuals by treating them not as individuals, but as members of racial groups. They also come bearing a history of terrible repression and discrimination. Consequently, the government is held to a near-impossible standard when it aims to use that particular method of classification.
There are two points to be made here. The first is that in many ways, caste in India, and race in the United States, have had a relevantly similar history. In particular, they have been used as identifying labels to sort a group of people into a permanently subordinate category, excluding them from normal economic and social life, and placing them in a position of extreme inferiority. The site of discrimination has been the identifying label itself – a person’s race, or caste, marks them out as deserving or undeserving of equal concern and respect from society. This explains, then, why the framers were so concerned with the goal of achieving a casteless society – they understood that in order to eradicate discrimination, its most potent marker would also have to be eradicated.
Now, that doesn’t resolve the issue. As is repeatedly argued in the United States, to get beyond race, you need to take race into account. If, for centuries, black people were kept in conditions of extreme subordination, then ushering in a regime of formal equality will only mean that their subordination will continue, because they are in no position to compete on equal terms with people who have had a two-century head-start. Consequently, true equality will require the government to take race into account in crafting affirmative action and other socially beneficial programs that, in a sense, compensate for the historically-determined present-day subordinate position of a class that is only formally free and equal. Of course, it is crucial to craft such programs in such a way that classification on the basis of race is a tool to achieve a society in which race becomes entirely irrelevant to social life. That is to say, paradoxically enough, race-based programs are designed to eliminate race, and not to entrench it.
The analogy is now obvious. We aim at a casteless society, but also understand that to get there, we need to take caste into account in crafting present-day beneficial and remedial programs. Much of Bhandari J.’s judgment focuses precisely on this (and this perhaps explains why he is far more sympathetic to American doctrine than the other judges). His advocacy of an economic test to determine social and educational backwardness stems from his suspicion that we shall ever truly be able to get beyond caste if we use caste-based classifications to redistribute educational opportunities in society.
We can now see, with Bhandari J., that while strict scrutiny is perhaps an inappropriately high standard to hold the government to, given the inherent dangers in caste-based classifications, there is a good case to be made for an intermediate standard of review – one that requires the government to show something more than simply a rational connection between its classification and its goal, but something more. In other words, the government ought to be able to demonstrate how its caste-based identification of socially and educationally backward classes reasonably contributes to the goal of achieving a casteless society.
And indeed, the use of the creamy layer doctrine is an instantiation of this form of intermediate review. The creamy layer doctrine circumscribes the discretion of the government in selecting socially and educationally backward classes on the basis of homogenous categories such as caste. It requires the government to wean out those members of an identified caste who are not, as it turns out, socially and educationally backward. By doing so, the doctrine seeks to ensure that there really is a substantive connection between eventual castelessness, and the affirmative action programs being used to achieve that goal. Some form of such scrutiny also exists when the Court, for instance, holds that reservations cannot be used for posgraduate studies, or in technically demanding fields such as aviation.
Intermediate scrutiny, therefore, exists in our affirmative action doctrine, although we don’t call it that. If the creamy layer is one particular instantiation of intermediate scrutiny, though, there is no reason why the Court shouldn’t subject caste-based affirmative action programs to a more general and broad intermediate scrutiny. In other words, instead of according near-complete deference (barring creamy layer) to the government in its selection of SEBCs, the burden should lie on the government to demonstrate in a convincing way how its program – if it is caste-based – will avoid the peril of entrenching (and not removing) caste. Unlike strict scrutiny, the government would not be placed under the near-impossible burden of showing that its program is the narrowest possible way of achieving its goals, but it would still be required to show that there is reasonable connection.
Given its emphatic rejection of American doctrine in Ashoka Kumar Thakur, it is unlikely that the Supreme Court would adopt this. As 15(5) is currently undergoing another basic structure challenge, however, it does provide an opportunity for the Court to do so, and require the government to more carefully circumscribe and shape its quota systems, than it is doing at the present.