(This is a guest post by Malavika Prasad. A prior version appeared here.)
The 103rd Constitutional Amendment permits the State to:
- make special provisions (Article 15(6)),
- make special provisions, including reservations in admissions to educational institutions, in addition to the existing reservations to the extent of 10%, and
- make provision for reservations in appointments or posts, in addition to the existing reservations to the extent of 10% for the advancement of “any economically weaker sections of citizens other than the classes mentioned” in Articles 15(4) and (5) and Article 16(4).
In this piece, I respond to Gautam Bhatia and Anup Surendranath, and make the basic structure argument against the 10% reservation for this class of beneficiaries. I do not present any analysis on the constitutionality of other “special provisions” such as scholarships, fee waivers, etc.
Reservations are meant to ensure that the ideal of “equal opportunity” is not a mirage for persons subordinated by social structures such as caste, gender, race, etc. This is why Article 16(4) is considered to be an emphatic restatement of Article 16(1)’s principle of equality of opportunity (see NM Thomas, Indira Sawhney and this paper examining the relationship between the two articles). Prior to the 103rd Amendment, in an ideal India in which quality education is available in public schools, a beneficiary of reservation under Articles 15(4) and (5) and Article 16(4) (let’s call them “protected groups”), from the parent’s generation ought to attain upward mobility of the degree and kind that enables their children or grandchildren to compete for the unreserved, open seats. So long as there is a steady stream of first generation learners from protected groups attending school each year with the benefit of reservation, the numbers of second and later generation learners from protected groups in the total pool of students (comprising reserved and unreserved seats) ought to grow. Growing numbers of later generation learners from these protected groups, in even unreserved seats, would be testimony to the success of a reservation program: the parental generation, being beneficiaries of reservation, gained a boost that enabled the later generations compete without the need for a similar boost. In other words, the benefit of reservation to earlier generation learners enables later generations of learners to work their way up, in educational institutions and the workforce, and out of the conditions of backwardness.
This logic is, of course, an oversimplification resorted to here only for the purpose of the argument. In reality, the conditions of backwardness that characterize OBCs are qualitatively different than those for SCs/STs. The key difference between the two is of social stigma: persons from SC communities, for instance, regardless of their attainments in education and employment, continue to face the stigma of untouchability by other members of society, a reality steadfastly recognised by the Supreme Court in 1992 Indira Sawhney, albeit with a recent and problematic departure in Jarnail Singh. A study of the castes and tribal groups classified as SC/ST, and the determinants for doing so is available in Chapter 5 of Marc Galanter’s Competing Inequalities.
The Rights of Later-Generation SC/ST/OBC Learners
After Articles 15(6) and 16(6), the number of second and later generation learners from protected groups who take up unreserved seats might diminish, notwithstanding the growing numbers of them who are capable of competing in the open channel. This would not have happened but for the Amendment, because the new set of beneficiaries under Articles 15(6) and 16(6) are to be “other” than those from the protected groups contemplated in Article 15(4) and (5) and 16(4). In other words, the new class of beneficiaries is defined in opposition to the old classes of beneficiaries. So when the State sets about following the Amendment’s instructions to name the new class of beneficiaries, it must first analyse what counts as “economic disadvantage” and then produce “indicators”. Then, it must test which persons qualify against these indicators of economic disadvantage. In doing so, the State must consider only persons who are not from the protected groups of SCs/STs or OBCs. Thus, to the extent of 10%, educationally well-to-do persons can be beneficiaries of reservations in educational institutions under Article 15(6). Likewise, classes of citizens who are adequately represented in the State services can be beneficiaries of reservations in the State services under Article 16(6). The Amendment thus cements the claim of persons from upper castes who are possibly educationally well-to-do and adequately represented in State services, on 10% of seats or posts.
Furthermore, the new class of beneficiaries is left to the State to notify from time to time, “on the basis of family income and other indicators of economic disadvantage.” What might count as “indicators of economic disadvantage” is unclear. Since “indicators of economic disadvantage” are to be understood in conjunction with “family income”, presumably, the indicators of disadvantage will consider disadvantage that afflicts families, and thus members of families i.e. individuals. Thus, the Amendment will cement the claim of persons from educationally well-to-do and otherwise well-represented upper-castes, based solely on characteristics that are individual to them.
This damages the basic structure of the Constitution of India. To be clear, the argument is not that the Amendment excludes second and later generation learners of SC/ST/OBCs capable of accessing unreserved seats, from accessing 10% unreserved seats. This by itself is not a problem for the basic structure; it is thus no response to argue that the SC/ST/OBCs already have 50% reserved seats and thus cannot remedy the loss of potential access to unreserved seats. The argument is that the exclusion of these later generation learners, due to an a priori reservation of 10% seats for persons from the upper-castes, is a violation of the basic structure doctrine.
The Logic of Group Representation
This argument hinges on the premise that reservations, as a special provision are meant to achieve representation of communities so far either unrepresented or inadequately represented in the State. That reservations are meant to guarantee opportunity for representation was the premise of even the debates in the Constituent Assembly on Article 16 (Draft Article 10) for instance here, here, here, here and here.
If we can agree that reservations are meant to remedy inadequate representation, then I make two claims:
First: reservations in particular, unlike other special provisions, are only a fruitful remedy to persons subordinated by a structural barrier such as caste, race and gender. This follows from the purpose of reservations being to enhance the representation of those groups that are inadequately represented. Inadequate representation of certain groups is a consequence of members from those groups being held back, throughout their lives, from accessing opportunities on par with the rest of society, by other members of society. For instance, gatekeepers to social spaces such as schools, workplaces, shops etc. continue to practice untouchability, or create other onerous entry barriers for persons from SC/STs. Such continual treatment as “lesser” than others could also psychological harms and intergenerational trauma in persons from SC/STs. One’s birth into castes that are SC/ST then becomes the cause for further and cumulative disadvantage that is not only social and educational but also economic. Contrast this with persons from upper-castes who are setback by “economic disadvantage”. Such disadvantage is not caused by being systematically treated discriminatorily by other members of society. Even the framers of the 1st Constitutional Amendment which introduced Article 15(4) were conscious of the nature of economic disadvantage, as Galanter notes:
In spite of [Prime Minister Nehru’s] reluctance to talk about caste, it is clear that what was intended were not measures to erase all inequalities, but specifically those which were associated with traditional social structure. “[W]e want to put an end to . . . all those infinite divisions that have grown up in our social life . . . we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. . . . But in the structure that has grown up . . . with its vast number of fissures or divisions.”
Galanter also notes that Nehru was unwilling to accept any of KT Shah’s amendments that sought to remedy only “economic backwardness” of individuals, as opposed to social and educational backwardness of “classes”:
He then observed: “But if I added ‘economically’ I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. ‘Socially’ is a much wider word including many things and certainly including economically” (id., 9830).
Since “economic disadvantage” as contemplated in the 103rd Amendment is unlike the structural disadvantage of caste, in that it varies from individual to individual and does not result from membership in a subordinated group, there is nothing to be gained from granting reservations to persons suffering economic disadvantage. This is because the barriers facing upper-caste persons with economic disadvantage are not barriers of representation. One might respond that reservations nonetheless are sought by groups that do not seek to be better represented, because they are an immediate and tangible benefit unlike other special provisions. While that may be true of the demand for reservation by upper-castes, it is not constitutional to accede to such a demand – which is the substance of my next claim.
Equality and the Basic Structure
Second, if reservations are to remedy the effects of caste-subordination by providing representation, then enhancing and cementing the representation of upper-castes damages democracy, which is a part of the basic structure of the Constitution of India. This aphorism is oft-invoked in cases concerned with questions of what comprises a representative democracy (“free and fair elections”, “judicial review of governor’s powers”) and how a representative democracy can be realized (mechanisms like “one-person-one-vote”, or “secret ballot”). For instance, Justices Khanna and Mathew held, in Indira Gandhi v. Raj Narain, that the constitutional amendment immunizing the election of the Prime Minister and Speaker from judicial challenge damages the principle of “free and fair elections”, a central principle of democracy. RC Poudyal v. Union held that a marginal distortion of the “one-person-one-vote” principle does not damage representative democracy. Kuldip Nayyar held that doing away with the requirement of domicile in the State of candidacy and secret ballot in Rajya Sabha elections would not damage representative democracy. It is the what – the concept in Bhatia’s and originally Dworkin’s words – and not the how – the “conception” – that courts recognise as part of the basic structure. In all these cases, Courts appear to repeatedly uphold elements of the structure and form of democratic government as part of the basic structure.
The form and structure of democratic government cannot be an end in itself, unless all citizens are a priori free and equal to each other. Indian society however possesses deep-seated inequality perpetuated by structures such as caste, and is thus fundamentally undemocratic. Democratic government was chosen as the means to achieve substantive democracy. Dr. Ambedkar reckoned with this reality as he defended the choice to place the working of the administrative services in the Constitution:
While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.
If elements of the structure of democratic government (such as “free and fair elections”) are part of the basic structure of the Constitution, then the ends sought to be realized through the means of democratic government must also be part of the basic structure. In other words, the why of democracy must be equally central to the basic structure of the Indian Constitution as the how and the what of democracy.
The why of our democracy, as Ambedkar stated, is to realize equality of all persons, despite our deep social stratifications. For substantive democracy, remedying subordination by virtue of caste-membership is indispensable. The 10% reservation for upper-castes undoes this remedy, by cementing the representation of upper-caste persons based on individual criteria such as economic disadvantage. In other words, the 103rd Amendment cements the power of already well-represented groups to the detriment of protected groups. This is a fundamentally undemocratic outcome, taking us back to the status quo in 1950 which we sought to consciously progress from in promulgating the Constitution of India. Thus, the 10% reservation consciously damages substantive democracy which is a core aspect and basic feature of the Constitution of India.
In lieu of a conclusion, it bears mentioning that for my argument, it is irrelevant whether the 10% quota is provided over and above the 50% reservation, or within the 50% reservation such that SC/ST/OBCs are entitled only to 40%. Likewise, nothing turns on breaching the 50% rule either – which can easily be breached by a constitutional amendment so long as special provisions are seen as an emphatic restatement of the principle of equal opportunity. Instead, my argument is merely that cementing the representation of persons from upper-castes damages substantive democracy – upper castes being adequately represented in all social spaces, educational institutions, and in the services of the State. The remedy for upper-caste individuals set back by economic disadvantage lies elsewhere, but not in reservations.