A Critique of the Supreme Court’s Maratha Reservation Judgment – I: Equality

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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On May 5 2021, a Constitution Bench of the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 [“the impugned Act”]. The impugned Act had granted reservations to the Maratha community in education and public employment (as a result, the total reservation in Maharashtra had gone over 50%, which was also the subject of challenge). Three substantive judgments, spanning 569 pages, were authored. The Court framed six questions, which – for the sake of simplicity – can be divided into three main issues. First, did the 50% cap on reservations (subject to ‘extraordinary circumstances’), as articulated by some of the judges in the Indira Sawhney judgment, merit reconsideration? Secondly, was the impugned Act correct in granting reservations to the Maratha community? And thirdly, following the 102nd Constitutional Amendment, were the several states competent to identify socially and educationally backward classes within their jurisdictions, or did that power now lie only with the centre? With respect to the first two issues, the five-judge bench unanimously answered “no”. On the third issue, by a 3:2 majority (Bhat, Rao and Gupta JJ), the bench found in favour of exclusive central competence (i.e., states can no longer identify SEBCs for the purposes of reservation).

I do not propose to address the second issue in too much detail. A perusal of the record (three separate Commissions had found that the Marathas did not constitute a “backward” community, and available data backed this up) shows that Court’s conclusion on this point is difficult to argue with, even though its scrutiny arguably went beyond what existing precedent permitted. Rather, in this post, I will focus on the first question (the 50% cap), and in the next post, on the federal issue.

On the first question, I will argue that the judgments of Bhushan J. (joined by Nazeer J) and Bhat J. suffer from numerous errors of law and logic. With respect, the impact of these judgments is to entrench – and perpetuate – a duplicity that has existed in Indian affirmative action jurisprudence right from the time of Indira Sawhney: in rhetoric, the Court commits itself to a broad and substantive vision of equality, but in practice, it affirms a narrow and formal vision.

The 50% Rule: An Overview

The “50% rule” has caused significant dispute and confusion over the years. Pared down to essentials, however, the issue is straightforward, and I will set it out here before enquiring how the Court dealt – or did not deal – with it. A reading of the first part of the judgment will reveal that many of the arguments I make here were placed before the Court by Mr. Mukul Rohatgi, and so my task is primarily an expository one.

The “50% rule” was first articulated by the Supreme Court in M.R. Balaji vs State of Mysore, where it was held that reservations under Article 16(4) cannot exceed 50%. When M.R. Balaji was decided, the Indian Supreme Court believed that Articles 14, 15(1), and 16(1) embodied a formal, or “caste-blind” vision of equality, where classifications based on suspected categories (caste, race, gender etc) were constitutionally impermissible. Article 16(4) carved out a specific exception to Article 16(1), by allowing reservations. Thus, formal equality of opportunity was the rule, and reservation was the exception. As the exception could not “swallow up” the rule, reservations had to be capped at 50%.

This understanding of equality was, however, overturned by a seven-judge bench of the Supreme Court in State of Kerala vs N.M. Thomas, where a majority held that Article 16(4) was not an exception to Article 16(1), but a facet of it (or, an “emphatic restatement” of the principle). In other words, the equality code of the Indian Constitution embodied a vision of substantive equality, which took into account existing structural and institutional disadvantages. Affirmative action, thus, was a part of genuine equality of opportunity, rather than clashing with it. In N.M. Thomas, two judges also spelt out the logically necessary corollary: the 50% cap in Balaji was no longer justifiable.

It was in Indira Sawhney, however, that waters were substantially muddied. While the plurality of opinions in the judgment make culling out a ratio a difficult task (and indeed, the ratio of Indira Sawhney was in dispute in the present case), it is at least plausible to argue that the judgment did two irreconcilable things: it both affirmed N.M. Thomas, and affirmed the 50% rule (subject to extraordinary circumstances). These two positions are irreconcilable because, as a matter of logic, the 50% rule must stand or fall with the proposition that Article 16(4) is an exception to Article 16(1). The moment you accept that Articles 16(1) and 16(4) both embody a vision of substantive equality, the 50% rule makes no sense at all. Substantive equality requires you to look at disadvantage, and if more than 50% of a given population is disadvantaged (to put the point at its most abstract level), there is no reason to limit affirmative action to 50%.

Indira Sawhney, thus, was an internally contradictory judgment, despite attempts by later judgments to make it make sense by holding that 16(4) was neither an exception to, nor a facet of, 16(1), but that both had to be “balanced” against one another. For this reason alone, it merited reconsideration.

The Judgment of Bhushan J.

Now, what reasons did the Court give to decline the request for reference, and reaffirm the 50% rule? Let us first consider the judgment of Bhushan J. Bhushan J. observed, first, that only two judges in N.M. Thomas had opined on the 50% rule. This is true. It is also irrelevant. As pointed out above, the 50% rule and Article 16(4) being an exception to Article 16(1), are joined at the hip. If one goes, the other must necessarily go. Secondly, Justice Bhushan observed that “Articles 15(1) and 16(1) of the Constitution are the provisions engrafted to realise substantive equality whereas Articles 15(4) and 16(4) are to realise the (sic) protective equality.” (paragraph 155) With respect, the learned Justice provided no explanation for what he meant by “protective equality”, how it differs from “substantive equality”, and why the difference matters (if it does). Thirdly, Bhushan J. quoted a speech by Dr. B.R. Ambedkar in the Constituent Assembly to argue that the intent of Article 16(4) had always been to limit reservations to a “minority”. This use – or misuse – of Ambedkar’s speech is one of the most troubling and problematic aspects of the judgment for me, and I will address it later. Fourthly, Bhushan J. held that the judgment in Balaji was not premised only on the fact that that Article 16(4) was an “exception” to Article 16(1), but that it was a “special provision.” A close reading of the actual judgment reveals, however, that this argument is pure misdirection. In Balaji, the Supreme Court noted that:

It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4).

It is therefore clear that the Balaji Court used “special provision” and “exception” interchangeably; indeed, it could not be any other way, because the phrase “special provision” has no independent meaning: something is “special” in that it does not occur in the ordinary course of things. It is difficult to parse quite what Bhushan J. thought he had accomplished by drawing a distinction between “exception” and “special provision”, because the learned Justice failed to explain any further, and instead only repeated the Balaji dictum of 50%.

Fifthly, Bhushan J. noted that:

The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality. (paragraph 162)

This paragraph, unfortunately, suffers from the logical fallacy known as begging the question. Bhushan J. observed that the “50% rule” was required to fulfil the objective of “equality” under the Constitution as held by Indira Sawhney – while the entire argument was that this is only true if equality under the Constitution is formal equality, which was denied by N.M. Thomas (and N.M. Thomas, of course, was affirmed by Indira Sawhney). Thus, on the one hand, Bhushan J. strenuously argued that Articles 15 and 16 embodied a vision of substantive equality, while on the other hand, he equally strenuously affirmed a 50% rule that only made sense if Articles 15 and 16 were about formal equality.

The paragraph then went on to ask “what is more reasonable than to say that reservation shall … not exceed 50% of the appointment?” Unfortunately, however, this is not the mic-drop that Bhushan J. appeared to believe that it was. The answer to the question is: any figure that accurately reflects the extent of group disadvantage in any given context is “more reasonable” than a flat figure of “50%”, assuming of course that the Indian Constitution is committed to substantive equality.

Mr. Mukul Rohatgi raised a number of other arguments for reconsidering the 50% cap, which I will not discuss here: the significant issues, and Justice Bhushan’s failure to deal with them, have already been addressed. The implications of this failure were made evident when Justice Bhushan came to consider the Gaikwad Report, which had recommended reservations for the Maratha community. The Report had done so on the basis that the representation of Marathas in public employment and education was far less than their representation in Maharashtra’s population. Now, as I had clarified at the beginning of this post, I will not here consider the veracity of their claims. What is important to note, however, is that Justice Bhushan held that even if this was true, it would not be a basis for granting reservation, as it was not an “extraordinary circumstance” within the meaning of the Indira Sawhney judgment. Latching on to an observation in Indira Sawhney that had said that extraordinary circumstances might include “remote and far flung areas” where people are removed from the “mainstream of national life”, and holding that this was “illustrative but indicative” (huh?), Bhushan J. held that a finding that 80-85% of the population was “backward” (which was the reasoning given by the Gaikwad Commission) would not be a ground for increasing the reservation above 50%.

It should be immediately clear that this flies in the face of any defensible understanding of “substantive equality”. The impact of Bhushan J.’s observation is that no matter the extent of disadvantage that exists in society, no matter the caste or class composition, no matter the history or contemporary reality of oppression – all of this is irrelevant to determining the quantum of reservation. To put the matter in the abstract, even if one hypothetically proved to Bhushan J. that in a given society, 20% of the population had oppressed the other 80%, and erected enduring structural and institutional barriers to their equal participation in society, Bhushan J. would still hold that “reservation cannot exceed 50%.” To say that such a blanket proposition is in any way consistent with substantive equality is to twist words and concepts out of shape. It is also particularly ironic, given that across the world, a substantial gap between representation in the total population, and representation in a specific area, is taken as presumptive evidence of indirect discrimination.

it is therefore submitted, with the greatest of respect, that Bhushan J.’s judgment is deeply flawed in every respect with respect to the rule of 50%; in all but in name, it takes affirmative action back to the Balaji days of Article 16(4) being an exception to Article 16(1), and the Constitution of “formal equality”. One could only wish that the learned Justice had the courage of his convictions and expressly spelt this out, rather than leaving us to read between the lines.

The Judgment of Bhat J.

Let us now turn to the concurring opinion of Justice Bhat. This judgment is somewhat difficult to parse, as it contains a smattering of quotes from figures such as Franklin Roosevelt and Anatole France, undertakes a comparative survey of reservation jurisprudence in the USA, Canada, and South Africa without explaining why those jurisdictions have been selected or what the purpose of comparative analysis is, embarks upon an entirely irrelevant excursion into various schemes and programs for the uplift of disadvantaged sections, delivers a moral sermon on alternatives to reservations, and puts out a number of observations on the concept of merit that are entirely at odds with its conclusions. Negotiating through the surplusage, however, one arrives at the following lines of reasoning. First, Justice Bhat held that a majority in Indira Sawhney had “decisively” ruled in favour of the 50% cap. However, as pointed out above, even if that is true, a majority in Indira Sawhney had also upheld N.M. Thomas, and the two propositions are contradictory. This is why the request for reconsideration of the 50% rule by a larger bench was justified. Secondly, Justice Bhat cited the principle of stare decisis, and the need for stability in the law. (paragraph 11). One might have been minded to accept this argument, were it not for the fact that the learned Justice’s new-found respect for stare decisis was strangely absent a little while ago when, as part of a bench led by Arun Mishra J., he saw no problem with overruling seventeen Supreme Court judgments on Section 24 of the Land Acquisition Act, which had consistently been followed by High Courts across the country. With due respect, stare decisis is a question of principle, not of convenience.

Thirdly, Bhat J. held that Indira Sawhney was based on the principle of “balance” – i.e., “balancing” equality of opportunity and reservations. However, as I have pointed out above, a “balance” that takes the form of a 50% cap is just a subtler way of rephrasing the “exception” paradigm: in no objective sense are you being “balanced” if (to repeat the hypothetical) 20% of a society oppresses 80%, but reservation is fixed at 50%. Once again, therefore, the word “balance” simply assumes the conclusion in the premise. This was made crystal clear in paragraph 34 of Bhat J.’s judgment, where the learned Justice noted that:

Upon examination of the issue from this perspective, the ceiling of 50% with the “extraordinary circumstances” exception, is the just balance what is termed as the “Goldilocks solution” – i.e. the solution containing the right balance that allows the state sufficient latitude to ensure meaningful affirmative action, to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence) is retained. 

It is entirely impossible to reconcile this paragraph with N.M. Thomas: here, Justice Bhat stated unambiguously that in his view, the “essential content” of equality is at odds with “affirmative action” – and not that affirmative action fulfils the demands of substantive equality. As with Justice Bhushan, this was a return to the Balaji era of the exception, only without expressly saying so.

I could not locate further substantive arguments in this concurring opinion. It is worth pointing out, however, that in a section considering the “larger issues” around affirmative action, Bhat J. noted how the concept of “merit” is, in itself, inherently discriminatory, decontextualised, and ignores situational inequalities. There is a deep irony here, because the entire framework of “balancing” equality of opportunity against reservation is premised on an uncritical acceptance of the concept of “merit”, which frames the understanding of formal equality of opportunity. If merit had to be understood contextually, then reservations and equality of opportunity would not be at odds, and nothing would have to be “balanced.”

(Mis)Using Ambedar’s Speech

Let me, finally, come to the issue of Dr. Ambedkar’s speech. There are at least four reasons why Bhushan J.’s use of Ambedkar’s Constituent Assembly speech – where he stated the reservation would be confined to a “minority” – is entirely flawed. First, no self-respecting theory of constitutional interpretation endorses deriving constitutional meaning from one speech delivered by one member of the Constituent Assembly. At the very least, the learned Justice needed to do his homework on whether Ambedkar’s view was the view of the Assembly as a whole. He did not do so. Secondly, even if Ambedkar’s view did represent the Assembly as a whole, it was a view about how Article 16(4) ought to be applied – not about the meaning of 16(4) itself. As Ronald Dworkin famously argued, there is a distinction between the “concept” of equality, and competing “conceptions” of the concept. And as long as the Constitution is framed at the level of concepts, the framers’ views about what specific conceptions it might take, are to be accorded no greater deference than anyone else’s view. Thirdly, in a jurisprudential tradition that continues to uphold Maneka Gandhi as a crown jewel of constitutional interpretation, it is rather jarring to find a sudden love for original intent. Recall that the evidence for the fact that the Constituent Assembly intended Article 21 to be limited to “procedure established by law” was far, far stronger than a single B.R. Ambedkar speech: it involved multiple debates, multiple failed amendments, and a cast-iron consensus that due process was to be kept out of the Constitution. Maneka Gandhi ignored all of that. I do not here intend to get into an argument about whether that was right or wrong, but the Court cannot say “I will use original intent when it supports my preferred conclusion, and discard it when it doesn’t.” That, to repeat, is a constitutionalism of convenience.

And finally, Ambedkar’s speech – when understood in context – is not as clear-cut as it might seem. I have argued elsewhere that Ambedkar’s speech was made in the context of a debate over the introduction of the word “backward” in Article 16, to qualify the word “classes”. Ambedkar’s reconciliation of the “competing claims” of (formal) equality of opportunity and adequacy of group representation was based on a qualitative addition to Article 16 (the word “backward”), and not a quantitative addition (a numerical cap, which Ambedkar discussed in his speech, but consciously refrained from writing into Article 16(4)). I do not here claim that my reading is necessarily correct, but that it is an alternative reading that, at the very least, precludes easy – and lazy – conclusions about the interpretation of Article 16(4) based on Ambedkar’s speech.

Conclusion

There is one point in the judgment where, to use an old proverb, one can see the mask slip. In paragraph 164 of his opinion, Justice Bhushan made the extraordinary statement that:

To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy (sic) is an essential feature of our Constitution and part of our basic structure.

What is one to make of this? All one can say is that the bogeyman of reservations leading to “caste rule” belongs in a WhatsApp forward, not in a judgment of the Supreme Court. One should perhaps not dignify this further with serious analysis. I do think, however, that this observation is particularly revealing. In both Justice Bhushan’s judgment, with its exhortations about how the country has progressed in the seventy years since Independence, and in Justice Bhat’s judgment, with its lengthy detours into various government schemes for disadvantaged classes, there is a clear undercurrent of opinion: “reservations have gone on too far and too long, we really should get rid of them now.” Justice Bhushan’s statement about “caste rule” sees those fears bubble to the surface but, as pointed out above, the undercurrent is present throughout, and ultimately seems to play a role in the Court’s repeated incantation about how the “50% rule” is so integral to the very idea of equality. I have previously argued that the history of reservations jurisprudence in India can be divided into three phases: the “exception phase”, the “facet phase”, and the “balancing phase”. With recent Supreme Court judgments repeating themselves about how there is “no right to reservation” (another overruling-of-N.M. Thomas-by-stealth move), coupled with today’s judgment, it is possible that a fourth phase – where the Supreme Court moves to limit and roll-back reservations while continuing to maintain the rhetoric of substantive equality – might have begun.

Postscript: EWS?

Does today’s judgment have any impact on the constitutional challenge to EWS reservations? Justice Bhushan expressly declined to comment on the issue. However, given the insistence of both Justice Bhushan and Justice Bhat about how the 50% rule is “integral” to equality, and given the fact that equality is undisputedly a part of the basic structure, it becomes difficult to see how the Supreme Court can reach any conclusion other than striking down EWS reservations as unconstitutional. That said, we wait to be surprised!