Yesterday, in Ram Singh vs Union of India, the Supreme Court overturned a government decision to grant reservations to the Jat community in nine states (by including them in the Central List of Backward Classes [“Central List”]). The judgment has created a significant political stir. As a legal matter, however – and subject to observations in two paragraphs, which will be discussed at the end – the case was decided on specific, narrow grounds, and breaks no new ground as far as constitutional issues are concerned. In fact, the case is probably best classified as an administrative law judgment rather than a constitutional one.
The factual matrix of the case stretched back eighteen years. In 1997, in response to numerous petitions, the National Commission for Backward Classes [“NCBC”] carried out a study, at the end of which it recommended the inclusion of Jats in the Central List only for two districts of Rajasthan. Subsequently, in response to numerous representations to review this decision, on 19.7.2011, the NCBC decided to approach the Indian Council of Social Science Research (ICSSR), asking them to conduct a survey in various states (UP, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat), in order to determine the socio-economic status of Jats. By a subsequent Cabinet decision, the states of Bihar, Uttarakhand and NCT of Delhi were also referred to the NCBC.
The ICSSR submitted a report (but made no specific recommendations about inclusion/exclusion in the Central List). The report was discussed by the NCBC, which also held public hearings. At the end of this process, on 26.2.2014, the NCBC submitted a report to the government, stating that “the Jat Community had not fulfilled the criteria for inclusion in the Central List of OBCs.” But on 2.3.2014, the cabinet rejected this report, on the ground that it did not take into account “ground realities.” Two days later, via a notification, Jats were placed in the Central List for the nine states.
At this point, it is important to note the status of the NCBC. It is a statutory body, established under the National Commission for Backward Classes Act, 1993. Under S. 9(2), it is provided that when it comes to inclusion or exclusion from the Lists, “the advice of the Commission shall ordinarily be binding upon the Central Government.” This closely followed the judgment of the Supreme Court in Indra Sawhney vs Union of India, where Justice Jeevan Reddy, commenting on the need for just such a specialised body, had observed that “its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefore.”
Judicial review of administrative or executive action follows certain well-settled principles. Judges may not substitute their wisdom for that of the authorised decision-making body, and nor may they intervene to correct what they perceive to be a mistake of policy, or a mistake in interpreting existing data. However, if the administrative decision is made in ignorance of relevant material, or is based upon patently irrelevant material (or, for that matter, is made mala fide), then the Court may set it aside. What the NCBC Act does is to statutorily mandate that the report of the NCBC constitutes “relevant material” that the government is bound to adhere to, unless there are good reasons for the contrary (presumably, other relevant material). As the Court correctly noted, in paragraph 26, “the advice tendered by the NCBC is ordinarily binding on the Government meaning thereby that the same can be overruled/ignored only for strong and compelling reasons which reasons would be expected to be available in writing.” Consequently, all the Court needed to do was to verify whether the government had actually provided relevant reasons for departing from the NCBC’s report.
This is exactly what the it proceeded to do. First, it extracted the state-wise summary of findings of the ICSSR. While acknowledging that elements of “backwardness” (in terms of representation in government jobs, school dropout ratio etc.) existed with respect to the Jat Community in some of the states, the ICSSR also clarified that only limited material was available before it, and declined to make specific recommendations. On the basis of the ICSSR Report, along with other reports available to it, the NCBC decided that the evidence did not justify the Jat Community’s claim to “social backwardness”, for the purposes of Article 16 of the Constitution.
After a detailed examination of the NCBC’s reasons, as well as its analysis of the primary material, the Court noted:
“Undoubtedly, the report dated 26.02.2014 of the NCBC was made on a detailed consideration of the various reports of the State Backward Classes Commissions; other available literature on the subject and also upon consideration of the findings of the Expert Committee constituted by the ICSSR to examine the matter. The decision not to recommend the Jats for inclusion in the Central List of OBCs of the States in question cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at on consideration of matters that are, in any way, extraneous and irrelevant… It may be possible that the NCBC upon consideration of the various materials documented before it had underplayed and/or overstressed parts of the said material. That is bound to happen in any process of consideration by any Body or Authority of voluminous information that may have been laid before it for the purpose of taking of a decision. Such an approach, by itself, would not make either the decision making process or the decision taken legally infirm or unsustainable. Something more would be required in order to bypass the advice tendered by the NCBC… An impossible or perverse view would justify exclusion of the advice tendered but that had, by no means, happened in the present case. The mere possibility of a different opinion or view would not detract from the binding nature of the advice tendered by the NCBC.” (Paragraph 46)
Additionally, the government’s contention that Jats were on the State Lists of eight out of the nine states was rejected by the Court, on the ground that those lists were made more than a decade ago, and that “a decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data.” (Paragraph 48) The Court also found that the minutes of the Cabinet meeting held just before the Notification reflected a focus on the educational “backwardness” of the Jat community by highlighting school, college and graduate enrollment (Paragraph 49). The “backwardness” contemplated under Article 16, however, was social backwardness. Consequently, the Court held that the cabinet notification ignored relevant material (the NCBC report) and, in turn, based itself upon irrelevant material (educational parametres and decade-old data); consequently, following the well-established principles of judicial review that we have discussed above, it set aside the notification.
So far, so standard. However, there are three further issues, highlighted in paragraph 54 of the judgment, that call for specific comment. First, the Court notes:
“Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness.”
While these lines have garnered a fair degree of attention in the press, it is important to note that this is simply a reaffirmation of the Court’s consistent position, spanning the last fifty years. As fas back as M.R. Balaji vs State of Mysore, in 1963, the Supreme Court held that a purely caste-based policy of reservations would violate the Constitution. While this blanket position was undermined in N.M. Thomas and Indra Sawhney, the position remains that while castes, which are generally “socially and occupationally homogenous classes” (Indra Sawhney, para 84), can constitute a convenient starting point for a reservations, the ultimate criterion is class backwardness. This means that caste groupings do not exhaust the scope of reservations under the constitutional scheme; and conversely, to the extent that a caste wishes to claim the benefits of the reservation scheme, it must demonstrate that qua class, it suffers from the social backwardness that Article 16 envisages. The failure of the Jat Community to demonstrate this latter point was what prompted the Court to observe, in another statement that has been widely quoted over the last twenty-four hours, that “an affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandate.”
The former aspect – that castes do not exhaust the scope of reservations – leads to the second important observation in the paragraph: the Court’s invocation of last year’s NALSA judgment, on the rights of the transgender community. The Court observes:
“New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness.”
This is a crucial point, because after the judgment in NALSA, the Union of India filed a clarification petition asking whether the placement of the transgender community within the Lists would have to first go through the NCBC. Here, the Court seems to clearly state that as per NALSA, the third gender has been judicially recognised as a socially/educationally backward class, entitled to affirmative action. This would suggest that the NCBC does not need to make a separate finding on the point, since the Supreme Court has already done so. But even apart from this, in May 2014, the NCBC did make a finding that transgender persons ought to be provided reservations. In accordance with yesterday’s judgment, the NCBC’s finding will be binding upon the government, unless overriding reasons are demonstrated. Consequently, the clarification petition ought to be disposed off as soon as possible, with appropriate directions to the government to add the transgender community to the Central List.
Secondly, the Union also observed that transgender persons do not “maintain a caste or community identity”, but at the same time might belong to specific SC/ST/OBCs. Here is where the Court’s focus on “new yardsticks” to measure backwardness becomes crucial, as does its acknowledgment – also in paragraph 53 – that social classes might be “internally heterogenous” (and based on gender). In other words, both substantively and procedurally, paragraph 53 amounts to a strong endorsement of the right of the transgender community to affirmative action, and takes the promise of NALSA vs Union of India a significant step forward.
And lastly, in the penultimate paragraph (54), after affirming that “backwardness” ought not to be judged relative to other groups, but on absolute parametres, the Court observes:
“[the] inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”
It is interesting that among all the adjectives that the Court might have chosen to describe the Jats, it picks “politically organised”. This opens up a plethora of fascinating questions, the first among which is: is political power, or access to political power, the main criterion for determining “social backwardness”? Is a politically organised group, just for that reason, no longer “socially backward”? And if not – recall that the very origins of judicial review lie in the understanding that “discrete and insular minorities“, who are likely to be sidelined or marginalised by the normal workings of the political process, need additional protection from the brute majoritarianism. Is there some conceptual connection with that idea, which is in the Court’s mind? Does the Court mean to say that groups who have managed to gain access to political power are expected to now leverage it in order to lift themselves out of their social backwardness? Or is the Court concerned that politically organised groups will use their clout to win reservations for themselves even when they don’t need it (a fear that is also visible in some US affirmative action cases)? The Court does not answer any of these questions here, but it will be interesting to see what importance – if any – it might accord to the political influence of groups claiming backward status, in the future.