Reservations, Equality and the Constitution – X: Untidy Endnotes

Let us try to sum up the long and tortuous judicial history of reservations in India. Conceptually, I suggest that we can divide this history into three distinct phases. The first phase, that lasted from 1950 (Champakam Dorairajan to N.M. Thomas), can be called the “colour-blind phase”. The judges held that the vision of equality that the Constitution subscribes to is “colour-blind”, that is, it refuses to take any account of caste, race, sex, religion etc. in the distribution of benefits and burdens. Articles 16(4) and – after Champakam, 15(4) – were constitutionally mandated exceptions to the rule and, as such, were to be construed narrowly, being departures from the norm. Cases like Balaji, which imposed a 50% cap on reservations, best embodied this view of the Constitution.

In N.M. Thomas, the Court shifted to a group-subordination view of equality, according to which groupings such as caste must be taken into account to achieve genuine equality, since historically, these groups have been the site and the locus of sustained discrimination. In holding that Article 16(4) is not an exception to, but a facet of 16(1), the Court effectively held that 16(1) itself – and thus, the equality code as a whole – is committed to the group-subordination vision. As we have seen, it is unclear whether this view ever commanded a majority of the judges in a decision.

Post Indra Sawhney, in the 90s and the 2000s, the pendulum swung back towards the middle. Now the Court held that while 16(1) was about colour-blindness, 16(4) was about group subordination, and both were independent guarantees of equality that had to be balanced against each other. So 16(4) was no longer an exception to 16(1), but neither was 16(1) just a more abstract way of expressing 16(4) – rather, both constituted different elements of the overall 14-15-16 equality code.

This view of two conflicting vision of equality, to be held and balanced against each other, ultimately permitted Parliament a wide degree of latitude both in devising schemes of reservations and justifying them by amending the Constitution itself. This was done through the introduction of Articles 16(4A), 16(4B) and 15(5), the first two of which were expressly introduced to overcome adverse Court decisions. By constitutionalising the carry-forward rule, the catch-up rule and educational reservations for OBCs, Parliament repeatedly shifted the balance towards empowering identified groups, at the cost of formal individual equality. These amendments survived basic structure scrutiny because the Court, having already held that the Constitution was committed to both visions, could hardly forbid Parliament from shifting the balance this way or that. Presently, the “private, unaided educational institutions” aspect of 15(5) is under basic structure scrutiny. The outcome of the case will be interesting, because it will demonstrate how far the Court is willing to let Parliament go with modifying the existing balance that it first invoked in Indra Sawhney.

We have also seen that group-based reservations are justifiable on two distinct grounds. One theory holds that the ultimate goal of the society is to get to a point where group identity becomes irrelevant; but that point can be reached only by using group identity as a locus for remedial programs, aimed at eradicating a present inequality that has been caused by historical circumstances. This theory continues to value the individual as the ultimate subject of its solicitude, and views group-based action as a necessary evil. On the other hand, the opposite theory values the group for itself, and views reservations as, ultimately, designed to achieve equality not between individuals, but between groups.

The two theories, as we have seen, clashed in the Court’s last major reservation case, Ashoka Kumar Thakur, and the Court emphatically asserted that the Constitution was concerned, ultimately, with bringing about a casteless society. The judicially-crafted doctrine of the creamy layer demonstrates this commitment. The creamy layer denies reservations to those individuals belonging to identified beneficiary groups (on the basis of caste) who do not share the social and educational backwardness that has provided the ground for singling out that caste in the first place. Notice that if ultimate group equality was the goal of the Constitution, then the creamy layer doctrine would be entirely uncalled for.

This, however, raises the following interesting point. In Ashoka Kumar Thakur, the Court expressly rejected the creamy layer doctrine when it comes to Scheduled Tribes and Scheduled Castes. This suggests that within the group subordination vision of equality, both subsidiary visions – the one of an eventually casteless society, that seeks to dissolve groups, and the one of a society in which groups exist based on equality – are at play. Now, this conceivably makes sense in the case of Scheduled Tribes. Arguments from multiculturalism and pluralism provide a plausible justification for preserving and strengthening the identity of defined sub-groups with their own particular ways of life (although, admittedly, arguments by feminists focus on inter-se inequalities within such groups – see, e.g., Benhabib, The Claims of Culture).  But on what basis – if the aim is a casteless society – is there a distinction between Scheduled Castes and other castes? Do Scheduled Castes have a claim on group preservation that non-Scheduled Castes don’t? The Court, in refusing to extend the creamy layer doctrine to Scheduled Castes, cites Constitutional provisions that define the group – but in so doing, it creates a doctrinal and conceptual incoherence, where different standards of equality are applied to analytically identical groups.

The selective application of the creamy layer doctrine represents a deeper conceptual problem with the Court’s reservations jurisprudence. The Court has never clearly stated what the ultimate goal is; if the goals are multiple (substantive equality? casteless society? equivalent representation?), then how do they relate to one another? Most importantly, how does the methodology (such as the 21-point Mandal Commission) relate to – or even, help in identifying – the goals at stake? A failure to address and answer these questions is largely responsible for the profusion of constitutional amendments that have brought in highly concrete administrative regulations into the domain of constitutional law, as well as the conflicting signals that have repeatedly issued from the bench, over the last two decades.

One way of doing this, as was suggested in the last post, is to adopt a form of intermediate scrutiny in adjudicating reservation cases. If the ultimate goal is, indeed, a casteless society, then caste-based classifications that ground the distribution of benefits and burdens, are at least presumptively suspect. Because the Constitution expressly envisages group-based reservations, though, it is perhaps not appropriate to hold the government to the level of strict scrutiny. Intermediate scrutiny solves both problems. It requires the government to demonstrate a substantial interest (which, following Ashoka Kumar Thakur, would probably be the eventual achievement of a casteless society), and to then show that there is a reasonable fit between its scheme of reservations, and the ultimate goal. Indeed, as was suggested in the last post, the creamy layer – without the Court quite knowing it – has been serving as just this kind of intermediate scrutiny. Whether or not the Court expressly adopts intermediate scrutiny at any point, there is, at the very least, an urgent need for doctrinal and conceptual clarity in the reservations jurisprudence: what values are at stake, and what are the permissible means of achieving the values, that take into account individual rights as well as historic and continuing social discrimination? Perhaps the next basic structure case will be the case that achieves that.

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