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Yesterday, the President assented to the Constitution (One Hundred and Third Amendment) Act, which introduces reservations based on economic criteria, into the Constitution. The swift passage of this amendment through both houses of Parliament (from start to finish, it took 48 hours) has raised serious questions about democratic accountability. The Amendment itself has been castigated (repeatedly) as an election gimmick, and contrary to the very purpose of providing reservations. However, this is now history: the Amendment is here, awaiting only to be notified by the Government. And so, to the only relevant legal question that remains: is the 103rd Amendment unconstitutional?

The Basic Structure

 

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It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges are always threatening to drop upon the neck of democracy, the Supreme Court has almost never used basic structure to invalidate constitutional amendments. The high-profile striking down of the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has been used on an average of once in a decade. And in the seventy-four constitutional amendments after Kesavananda, only five have been struck down on substantive basic structure grounds (a strike rate of around 7%).

It’s also interesting to note (by way of example) what the Supreme Court has allowed to stand in the teeth of a basic structure challenge: in Nagaraj, a whole-scale restructuring of Article 16 that would effectively breach the 50% Rule (more on that in a moment), and in Poudyal, a departure from the principle of one-person-one-vote (more on that shortly, as well). Even when the Court has invoked basic structure, it has elected to use the scalpel rather than the bludgeon: in Raj Narain and in Minerva Mills – two of the starkest cases of constitutional abuse in our history, both by Indira Gandhi – the Court only snipped away a clause (granting immunity to Indira Gandhi from electoral malpractice) and a phrase (effectively getting rid of the fundamental rights chapter altogether) respectively, while upholding the rest of the (abusive) Amendments under challenge.

This is the case because the Court – conscious of the legitimacy issues with striking down a constitutional amendment – has been very careful about the language that it uses. Kesavananda Bharati didn’t say “modify”, “tinker”, or “change” – it said that a constitutional amendment cannot “damage or destroy” the basic structure. Nagaraj refined this by introducing the “width and identity” tests, making it clear that a basic structure challenge would have to demonstrate that the constitutional amendment makes the Constitution virtually unrecognisable.

The Amendment 

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Within this context, let us briefly examine the 103rd Amendment. The Amendment introduces Articles 15(6) and 16(6) into the Constitution. 15(6) allows for reservations for “economically weaker sections of citizens” other than the classes mentioned in Articles 15(4) and 15(5) (i.e. effectively, other than the SCs/STs/OBCs). Article 16(6) does the same for public employment. The quantum of reservation is fixed at 10% over and above the existing reservation for SCs/STs/OBCs. An Explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

I want to focus on three features that (in my view) can form the basis for a potentially credible basic structure challenge. The first is the “50% question.” The second is (what seems to be) the use of family income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

The Challenge 

A. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The roots of this stipulation lie in M.R. Balaji v State of Mysore, where the Supreme Court held that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of opportunity), anything more than 50% would imply that the exception was swallowing up the rule. In Indra Sawhney v Union of India, this judicial rule was affirmed once again, and a governmental notification providing for 10% reservations on the basis of economic disadvantage was struck down. However, neither Balaji nor Sawhney were concerned with the basic structure: they were considering a law and subordinate legislation, respectively.

So, is the 50% rule a part of the basic structure? In Nagaraj, the Court suggested that it is, when it noted that:

” … the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

But is there any support for this observation? The only indication that the 50% limit is so crucial that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948. Ambedkar observed that the purpose of Article 16 was to balance two competing principles – (formal) equality of opportunity, and compensation for inadequate representation in public employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and 16(4)), and one example that Ambedkar specifically took to indicate what might upset this balance was a potential situation in which the quantum of reservation reached 70%.

There is, therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as its drafters intended (and as the Supreme Court later affirmed). However, it does not follow from that that an amendment to Article 16 that changes this scheme would be a basic structure violation. This is for two reasons. The first is that the basic structure is not reducible to a particular, concrete articulation of values, internal to a specific constitutional provision. It is open to Parliament – acting in its constituent capacity – to depart from the constitutional settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the only reasonable interpretation available. In N.M. Thomas, for example, a majority of four judges out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words, 16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as that was predicated on 16(4) being an exception to 16(1).

I have defended this interpretation elsewhere, but here, I am not concerned with whether it is right or wrong. The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-judge bench of the Court, and which has never – technically – been overruled. Consequently, it is certainly open to Parliament to take that view, and amend Article 16 to reflect that.

Lastly – and keeping everything else aside – I am not even sure that on its terms, the 103rd Amendment commits Parliament to increasing the quantum of reservation above 50%. The Amendment only provides reservation to the extent of 10%; however, existing Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at 50% – that has been achieved through legislation. Consequently, how can a basic structure challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised at all – must come in when Parliament enacts a law to give effect to the Amendment.

B. Individuals and Groups

There is, I think, a more persuasive basic structure argument against the Amendment. There is one feature that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the “family income” as the primary determinant of economic disadvantage, the Amendment advances a philosophy of reservation that focuses on remedying individual disadvantage (by taking the family as the unit for determining who is disadvantaged). At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles 14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the historical fact that in India, group membership has been the primary basis of institutional and structural disadvantage. One’s access to opportunity and chances of social and economic mobility have been mediated by one’s group identity – and primary, that identity has been structured around caste. The logic of reservation in India – and this dates back to pre-Independence times – has, consequently, always been that while the right to equality is an individual right, the only method of achieving substantive equality at an individual level is to take into account the disadvantages and barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd Amendment must fail the basic structure test is because it essentially contains internally contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

While I agree that the 103rd Amendment makes a logical mess of the scheme of Equality Code, when it comes to a basic structure challenge, however, I find myself running up against the same difficulty that was faced in assessing the 50% challenge. And that is that the argument accords to the basic structure a level of specificity that it does not have, and one that the Court has consistently refused to give it. It is true that economic reservation goes against the grain of how social justice and equality have always been conceptualised in India, at least in constitutional terms. It is true that it sets up a contradiction (in terms of legal logic) between the SC/ST/OBC reservation provisions, and economic reservation. However, once again – the basic structure does not bind Parliament to any particular conception of equality and social justice. The basic structure does not require that Parliament follow the same logic, even within the same constitutional provision. The basic structure does not mandate clean, coherent, and logical drafting. All it requires is that a basic feature – in this case, “equality” – not be “damaged or destroyed.” And for me, it is difficult to see how economic reservation “damages or destroys” the concept of equality, because as long as there exists a reasonable understanding of equality that can accommodate economic reservation – and surely there does – it will be immune from a basic structure challenge.

The distinction between the level of the “concept” (which is the level at which the basic structure operates) and the level of the “conception” (which is the level at which the Amendment operates) is made clear if we consider the case of R.C. Poudyal: in R.C. Poudyal, which dealt with the accession of Sikkim to the Indian Union, one of the challenges involved a departure from the one-person-one-vote principle when it came to elections within Sikkim. It was argued that this violated the basic structure, because it went against democracy. The Court upheld it, however, noting that there were many different forms of democracy that were consistent with the concept of democracy. Similarly, there are many visions of equality – many concrete manifestations – that remain consistent with the concept of equality. A basic structure challenge can succeed only if equality itself is abrogated – for example, if Article 14 is repealed altogether, or if a Bill of Attainder is passed (which was the issue in Raj Narain).

Arbitrariness 

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has no relation with the goal of reservation. In other words – as many people have pointed out – reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.

This raises a fascinating constitutional question, which is yet to be resolved: are there specific articles that are so important and crucial, that they themselves constitute basic features? In particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a constitutional amendment can be challenged, like an ordinary law, on the basis that it violates one of these articles?

The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality, freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional amendment.

Conclusion

There are powerful legal and constitutional arguments against economic reservation. However, what the above discussion has shown is that they operate at the level of the law: they would succeed were it the case that legislation was being tested against the basic structure.  However, it is far more difficult in the case of a constitutional amendment. Ironically, this is because of the precise reason that has given so much fodder to basic structure critics – the Court’s refusal to define it in concrete and specific terms. As long as economic reservation is defensible on a ground that is recognisable in terms of equality, the fact that it departs from how equality and social justice is presently understood in the Constitution, is no ground for striking it down. And that minimal threshold, in my view, is met by the 103rd Amendment. It is likely to survive a basic structure challenge.