A Critique of the Supreme Court’s Maratha Reservation Judgment – II: Federalism

[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)].


In the previous post, we discussed the Supreme Court’s holding on the 50% cap in the Maratha Reservation judgment. In this post, we shall discuss the second set of issues that came before the Court, i.e., the interpretation of the 102nd Amendment to the Constitution, and whether the power to identify socially and educationally backward classes [“SEBCs”] was vested only with the centre, or with both the centre and the states. By a 3:2 majority, the Supreme Court held in favour of the former view, and thus denuded the states of their power to identify SEBCs for the purposes of reservation, going forward.

The 102nd Constitutional Amendment made three significant changes to the Constitution. First, through a new Article 338B, it created a National Commission for Backward Classes with constitutional status. Article 338B largely followed the scheme of Article 338 (National Commission for Scheduled Castes) and 338A (National Commission for Scheduled Tribes). Secondly, through a new Article 342A, it specified a process for the identification of SEBCs that closely followed the process of identification set out in Articles 341 (Scheduled Castes) and 342 (Scheduled Tribes) – albeit, with one significant difference, to which we will come to in a moment. Thirdly, it added a new sub-clause (26C) to the Constitution’s definitions clause (Article 366), which stated that the term “SEBC” means “such backward classes as are so deemed under Article 342A for the purposes of this Constitution.”

There were two competing interpretations of these changes. According to the first interpretation, the new constitutional provisions did not substantively alter the status quo, according to which the centre and the states exercised joint and separate powers to identify SEBCs (a central list and several state lists), for their own purposes (educational institutions and public employment). According to the second interpretation, however, these provisions created a new structure that was identical to the situation of Scheduled Castes and Scheduled Tribes (SCs and STs): the power to identify beneficiaries now lay solely with the centre, and no longer with the states.

At the outset, there were two textual reasons in support of the first proposition. First, unlike in the case of SCs and STs, the existing arrangement – i.e., state and centre exercising powers separately – had been in existence since the beginning of the Constitution. It was therefore implicit that if a constitutional amendment intended to change that to a drastic degree, it would do so in express terms, and not by implication. Notably, at no point did Article 338B or 342A state that the process it was codifying was the sole process of identifying SEBCs. Secondly, there was one notable difference between Articles 341 and 342 on the one hand, and Article 342A on the other. All three articles, in their first sub-clause, authorised the President to notify the list of beneficiaries (SC, ST, or SEBC). In their second sub-clause, Articles 341 and 342 clarified that a Presidential notification could only be amended by Parliament. Article 342A(2), however, used the following language: “Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class…

The reference to the Central List is new, and strongly indicates that the new constitutional arrangement was limited in its operation to the existing process only at the central level, i.e., with respect to the Central List of SEBCs (and not the state lists). If the intention of the new scheme was to do away with state lists altogether, then Article 342A(2) would have followed the wording of 341(2) and 342(2), which only used the terms “list of Scheduled Castes” and “list of Scheduled Tribes.” The phrase “Central List” made sense only in a context in which there existed state lists to start with.

As we have seen, however, by a 3:2 majority, the Supreme Court disagreed with this reading. Let us first examine the judgment of Justice Bhat, with which Justices Gupta and Rao agreed. As Bhat J. insisted that the wording of the amendments was unambiguous, and a literal reading pointed to only one possible interpretation, I will – for the moment – set aside the extensive references to Parliamentary Committee reports and to policy reasons underlying the constitutional changes, and focus on textual and structural arguments. A close examination of Justice Bhat’s judgment reveals the following reasons for disagreement: first, Article 366(26C) defined SEBCs by referring to Article 342A, “for the purposes of this Constitution.” The phrase “for the purposes of this Constitution” was to be interpreted broadly, and – following precedent on the interpretation of Articles 341 and 342 – read to include the entirety of the Indian Constitution, which therefore also included Articles 15(4) and 16(4) (the reservation provisions). Consequently, Article 342A now exclusively governed the field with respect to the identification of SEBCs. Secondly, previous amendments to the definitions clause had been given effect to “in their broadest manner”, including in situations where this would cut down the powers of the several states. Thirdly, given that, under the National Commission for Backward Classes [“NCBC”] Act, the central government already had the power for publishing lists of SEBCs for union employment and central PSU posts, there was no reason to amend the Constitution and provide for a power that already existed; fourthly, the word “central” was used at various places in the Constitution, and therefore only signified a list prepared by the President at the behest of the central government, and not a list for employment under the central government; fifthly, Parliament intended, through the 102nd Amendment to replicated the regime for identification of SCs and STs, for SEBCs as well, and that is why Article 338B was a “mirror image” of Articles 338 and 338A. The “total alignment” between the three processes was then achieved by Article 342A.

With respect, each of these arguments is flawed.

The problems begin with the first argument (“for the purposes of this Constitution”), which was – indeed – the lynchpin of Bhat J.’s interpretation (and therefore reiterated by him throughout the judgment). The problem is a simple one: in essence, Bhat J.’s reading puts the cart before the horse. Article 366(26(C)) states that SEBCs, for the purposes of this Constitution, mean the backward classes deemed so under Article 342A. But it is the interpretation of Article 342A itself that is under dispute, because of the use of the term “Central List”. If, for the purposes of argument, we assume that the correct interpretation of “Central List” is, indeed, the list that refers to union employment and central PSUs, and not the list prepared by the centre, then Article 342A itself contemplates separate powers for the centre and the state, in identifying SEBCs. Justice Bhat’s argument might have been correct if Article 366(26(C)) had referred back only to Article 342A(1) – which is about the Presidential notification of SEBCs. But Article 342A contains two sub-clauses – (1) and (2), (2) refers to the “Central List”, and 366(26(C)) refers to both 342A(1) and (2). It therefore follows that the implication of the term “for the purposes of this Constitution” under Article 366(26(C)) will change depending upon how you first interpret Article 342A, on its own terms. Instead, Bhat J. used Article 366(2C)) to settle the issue of the interpretation of Article 342A. This, then, would have a knock-on effect on a lot of other arguments deployed by him, such as, for example, giving an exhaustive meaning to the word “means” under Article 366(26(C)) as well. And if Bhat J.’s first argument falls, then the second argument – giving amendments to the definition clause their “full impact” falls as well, because we don’t know what the definitions clause actually refers to until we have first interpreted Article 342A, autonomously.

The third argument works no better. It is equally plausible to argue that Parliament wanted to provide constitutional status to what had hitherto been only a statutory procedure under the NCBC Act. Constitutional bodies exercise greater prestige than statutory bodies (recall the whole debate about the necessity of having a putative NJAC under the Constitution, and not left to statute). Without further evidence of Parliamentary intent, neither interpretation can be favoured over the other.

Justice Bhat’s fourth and fifth arguments can be taken together, as they both pertain to the phrase “central list.” On his fourth argument, the fact that the Constitution uses the word “central” at various points does not help the case: the issue is not with the word “central”, but with the term “central list”, and with the fact that Articles 341(2) and 342(2) do not use that phrase, and instead, use the phrase “lists of…” If, indeed, the term “central list” meant a list prepared by the central government (through the President), then the exact same phrase should have been used in Articles 341(2) and 342(2) as well – because the list of SCs and STs is also prepared by the central government. This also addresses Justice Bhat’s fifth argument, about the “mirror image” and “total alignment”: this argument is simply belied by the textual differences between 341(2), 342(2), and 342A(2): the moment Article 342A(2) uses the phrase “central list” – a conscious departure from “lists of…”, there is evidently no “total alignment.”

In my view, these arguments demonstrate that the textual evidence is clear for the other interpretation of these provisions: that they were not meant to disturb the status quo and denude the states of their powers to identify SEBCs. At the very least, however, these arguments reveal that the provisions are ambiguous, and therefore require extrinsic aids to interpretation. In this context, I do not have much to add to Bhushan J.’s discussion of the Parliamentary debates and reports that led up to the 102nd Amendment, as I find it both persuasive and compelling. In brief, objections were raised as to how the Amendment, in its presently worded form, might take away the states’ powers, and the minister piloting the amendment made it clear that the purpose was not to take away states’ powers, but to codify central powers. Bhat J. points to the fact that proposed amendments aiming to set this out in express terms were rejected. The rejection of an amendment, however, can be motivated by two reasons: on the one hand, it could be because Parliament did not agree with the substance of the amendment. On the other hand, it could be because Parliament was of the view that the amendments did not alter or add to anything that was already there – and obviously so – in the original text. Repeated assurances by government ministers that the Bill was not altering the status quo suggests the latter reading. Bhat J. also draws a distinction between assurances that states’ powers would not be diluted, and states’ interests would be taken care of. A look at the legislative history makes it clear, however, that both sets of assurances (not just one) were made.

One could argue, of course, that the parliamentary history – like the text – is inconclusive. A final point then remains: that of federalism. Let us say, for the purposes of argument, that the text of the provisions admitted of no definite interpretation, and neither did parliamentary history. In such a context, faced with two equally plausible interpretations of the text, it was at least abundantly clear that one interpretation would advance federalism (a part of the basic structure of the Constitution), while the other would undermine it. As in the famous UK Supreme Court judgment in Miller II, constitutional principles can – and often do – serve as implied limitations upon constitutional power, where more than one reading of a text is possible. It is my submission that as long as Article 342A could bear a plausible interpretation that would support federalism, it was the Court’s duty to give effect to that interpretation.

Unfortunately, however, not only did Bhat J.’s judgment not do this, but also found this to be a policy reason in support of his anti-federal reading. Bhat J. made references to how a single, central list would help to prevent politicisation of the process, and ensure objectivity in identifying beneficiaries. Not only are these claims evidence-free, however, they are also quite bizarre: why would one think that taking power away from state governments and giving it to the central government would remove politicisation, instead of just shifting its locus from point A to point B (there is, furthermore, a latent prejudice here against the idea of politics, and in favour of an apolitical, technocratic process, but let us leave that discussion for another day)? Justice Bhat’s arguments reveal an unfortunate bias that has long been part of Indian judicial discourse: the assumption that state governments are prone to corruption, rent-seeking, and institutional capture, while the central government stands aloof and objective. There is, however, no historical basis to this claim, and indeed, in the case of SEBCs, there are powerful arguments to be made that local governments are best positioned for the purposes of identification.

Whatever the final reasons, however, the Marathe Reservation judgment only adds to what is now a fairly long anti-federal judicial tradition of interpreting constitutional ambiguities so as to transfer power from the states to the centre. In the long run, this belies our courts’ rhetorical commitment to the principle of federalism and is, in my view, an unfortunate part of our constitutional jurisprudence.

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)].


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!

Guest Post: Deconstructing the Paternalism in Section 66(1)(b) – Treasa Josfine v. State of Kerala

[This is a guest post by Unnati Ghia.]


On 9th April 2021, the Kerala High Court in Treasa Josfine v. State of Kerala directed the State authorities to consider an application submitted by the petitioner (a female trainee engineer) for the post of a Safety Officer in Kerala Minerals and Metals Ltd, on the grounds that she had been denied opportunity on the basis of her sex.

The petitioner’s grievance was that the notification published by the State inviting applications for the post applied only to male candidates, which was discriminatory under Articles 14, 15 and 16 of the Constitution. The counter affidavit filed by the State argued that the notification was in compliance with Section 66(1)(b) of the Factories Act, 1948. Section 66(1)(b) states that “no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M”. The submission of the State was that the post of a Safety Officer required the person so engaged to work round the clock, even during the night if required. Therefore, women could not be hired for this position under the provisions of the Factories Act. 

Reasoning of the Court

The Court in Treasa Josfine relied on two key decisions of the Kerala High Court. The first decision was that of Hindustan Latex Ltd. v Maniamma, which, in my opinion, does not appear to be a case under Section 66(1)(b). In Hindustan Latex, a Division Bench of the Kerala High Court observed that special provisions for women under Article 15(3) constituted an exception to sex discrimination under Article 14.

In Leela v State of Kerala, another Division Bench took the view that Section 66(1)(b) was a beneficial provision under Article 15(3). The Bench held that Section 66(1)(b) ensured that women were not taken away from their families, and they were protected from the “hazards” of working at night.

The Court also relied on Vasantha R v Union of India, where the Madras High Court held Section 66(1)(b) to be discriminatory under Articles 14, 15 and 16. Interestingly, the Madras High Court observed the validity of Section 66(1)(b) must be tested under Articles 14 and 15(1) because it was a restriction on women, as opposed to being a protective provision under Article 15(3).

In Treasa Josfine, Justice Anu Sivaraman agreed that Section 66(1)(b) is a beneficial provision intended to protect women. However, the Court observed that the Factories Act was enacted at a different time and in a different socio-economic context, particularly with respect to the roles played by women in society. Given this context, Section 66(1)(b)’s force could only be utilised to protect women, but would not constitute a reason to deny them engagement and opportunity if they are fully qualified [paragraph 15]. On this basis, the Court set aside the notification and held it to be violative of Articles 14, 15 and 16. 

The premise of the Court’s decision in Treasa Josfine is that the change in the roles played by women as they shift from domestic labour to wage labour warrants a different interpretation of Section 66(1)(b) [paragraph 14]. The Court relies on the Supreme Court’s decision last year in Ministry of Defence v. Babita Puniya, which held that justifications founded in stereotypical assumptions about women do not constitute a valid basis for denying opportunity. In light of this, the Kerala High Court held the denial of opportunity to the petitioner under Section 66(1)(b) is “completely untenable and unacceptable”. 

Within this reasoning, it is not clear which stereotype has caught the scrutiny of the court and rendered the notification unconstitutional. The Court refers to the fact that women capably work round the clock jobs in several industries today. From this, one may infer that the assumption that qualified women cannot work in a night shift or beyond 7 p.m. is the problematic stereotype in this case. If so, the application of Babita Puniya to this case is valid. 

However, this does little to detract from Section 66(1)(b) as it stands — that women cannot be employed for tasks beyond 7 p.m. The issues identified by Sivaraman J. in the notification therefore stand equally true for the main provision. Yet, the constitutionality of Section 66(1)(b) vis-à-vis the decision in Babita Puniya was not examined by the Court. 

There are two reasons as to why the Kerala High Court in Treasa Josfine may have refrained from entering into this discussion. First, the Judge sitting singly was bound by the previous Division Bench decisions in Hindustan Latex and Leela, and was obligated to follow the position taken in those decisions. Second, the petitioner appears to have challenged the constitutionality of Section 66(1)(b) only to the extent that it impacted her participation in the selection process. 

In this post, I now present reasons for why Section 66(1)(b) cannot withstand constitutional scrutiny under Article 15, in light of the same principles as identified by the High Court. 

Unconstitutionality of Section 66(1)(b)

The premise of Section 66(1)(b) is that women do not have the capability to protect themselves in a job that requires them to work at night. Thus, the denial of opportunity to women under Section 66(1)(b) is justified on the basis of a need for security. What are the issues with this approach?

First, it presumes women to be hapless victims requiring robust protection from the State. This is not to say that the workplace cannot be an unsafe environment for women, but this could be addressed without victimising them. Second, the approach under Section 66(1)(b) places the burden of this protection on women themselves by completely removing them from a “dangerous” work environment, as opposed to taking steps to remedy the threat therein. 

Another rationale behind Section 66(1)(b) was highlighted by the Kerala High Court in Leela — the provision ensures that women would be able to take care of their families and that their children would not suffer. A similar argument was made before the Madras High Court in Vasantha R v Union of India. The Madras High Court held that women holding household duties is not a universal phenomenon, and did not constitute a reason for denying a night shift. 

Interestingly, this rationale was also explicitly rejected by the Supreme Court in Babita Puniya. There, Chandrachud J. observed that the argument that women could not meet their requirements of service due to domestic obligations was itself predicated on the stereotype of such obligations resting solely on women. Women are often pushed into and limited to the domestic sphere by the patriarchy itself. This is why it is problematic to deny employment opportunities or benefits on the basis that women have to devote time to the home, because it further entrenches the public-private divide. 

On the basis of the anti-stereotyping principle in Babita Puniya then, Section 66(1)(b) cannot pass muster. An obvious response to this argument is that even if it employs a stereotype, it is a special provision permitted under Article 15(3). For instance, the Kerala High Court maintains that Section 66(1)(b) is a special and beneficial provision for women, intended to protect them from exploitation. Admittedly, provisions such as Section 66(1)(b) have posed a legal conundrum, because courts generally conflate provisions protecting or prima facie in favour of women as necessarily being materially beneficial to them. 

The perils of this form of “protective discrimination” in favour of women have already been acknowledged by the Supreme Court in Anuj Garg v. Hotel Association. In Anuj Garg, a law prohibiting women from being employed in establishments serving intoxicants was struck down because it ended up “victimizing its subject in the name of protection”. Such laws presume that women inherently lack agency, and thus are examples of State sponsored paternalism. 

Justice Ruth Bader Ginsburg had pointed out a similar phenomenon in the United States in the aftermath of Muller v Oregon. In Muller, the US Supreme Court upheld a statute that prohibited women from working for more than 10 hours a day, due to the “unique vulnerability” of women. The decision in Muller resulted in a series of “protective” labor laws for women, which prohibited night shifts, limited the loads they could carry and excluded them from certain jobs completely. According to Ginsburg J., these laws prevented women from competing with men, resulting in lower paying jobs, and also reinforced traditional gender roles — all in the name of “protection”. Subsequently, in the first case Ginsburg J. argued before the US Supreme Court, Justice Brennan observed that protective labor laws placing women on a pedestal were, on closer inspection, often a cage.

Similar forms of gender discrimination are justified by Indian courts under Article 15(3). In response, Gautam Bhatia for instance has argued that “special provisions” must bear some relation to the historical and structural subordination of women. This would ensure that the State must identify and attempt to remedy specific forms of disadvantage, as opposed to provisions that pay lip service to equality and limit the agency of women. 

Conclusion

Notably, states such as Maharashtra and Kerala have altered the position under Section 66(1)(b) by permitting the employment of women post 7 p.m. provided that all safety and security safeguards are met by the employer. This leaves the employment of women entirely to the option of the employer, but does little to incentivise them, especially given the benefit of a statutory justification to deny employment in the first place. In light of these reasons, Section 66(1)(b) must not be understood as a “special or beneficial” provision for women. Instead, laws that mandate safeguards and security for women at the workplace without removing them from the workplace altogether would be better suited to the objective of a “beneficial provision” for women. 

Guest Post: Government Contracts and Constitutional Remedies – A Critique of the Unitech Decision

[This is a guest post by Sholab Arora.]


This article analyses the recent judgment of the Supreme Court in Unitech v. TSIIC [2021 SCC OnLine SC 99], delivered by a bench comprising of Justices D.Y. Chandrachud and M.R. Shah, from the jurisprudential vantage point of the settled principles of law concerning the following two issues:

i) Whether a writ petition is maintainable in cases wherein issues arise purely within the private law domain of contracts even though such contracts have been entered into by a governmental authority; and

ii) Whether in a writ petition, a relief seeking refund of money simpliciter from governmental authorities can be granted.

This article disagrees with, and critiques, the judgment. But before analyzing the ruling in Unitech, it is imperative to have a conceptual understanding of the principles of law governing the aforementioned issues.

Case Law on Writ Jurisdiction and Governmental Contracts: A Conspectus

The issue whether a writ petition is maintainable in cases concerning governmental contracts has had a seemingly chequered history and a perusal of the relevant judgments of the Supreme Court, at a facile level, would reveal that somewhat contradictory and ambiguous positions have been taken therein. However, a uniform and consistent jurisprudential thread can be discerned from the case law, whose inception can be traced to the Constitution Bench judgment in K.N. Guruswamy v. State of Mysore [AIR 1954 SC 592] and appears to be maintained until the Three Judge Bench judgment in State of U.P. v. Sudhir Kumar Singh [2020 SCC OnLine SC 847]. I argue that the ruling in Unitech substantially departs from the settled jurisprudential thread, while purporting to maintain consistency.

In Guruswamy, the Court held that if the procedure of allotment of tender by a governmental authority is not open and transparent, a writ can be granted. In D.F.O., South Kheri v. Ram Sanehi Singh [(1971) 3 SCC 864], the Court, after referring to Guruswamy, held that a writ petition is maintainable if the action challenged is that of a public authority invested with statutory power even though the relief sought arises out of an alleged breach of contract. In Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457], the Court, after referring to Erusian Equipment and Chemicals Ltd. v. State of West Bengal [(1975) 1 SCC 70], held that only those actions of a governmental authority (within the contractual domain) can be analyzed under Article 226 on the touchstone of Article 14 which are at the threshold, or at the time of entering into a contract. After a contract has been entered into and the parties have fully entered the contractual field, a governmental authority is not encumbered with any constitutional obligation. However, even after a contract has been entered into, statutory obligations of a governmental authority can still be enforced.     

Not substantially departing from the principles laid down in the aforementioned judgments, the Court in D.F.O. v. Bishwanath Tea Co. Ltd. [(1981) 3 SCC 238] held that in case an issue complained of is purely breach of contract, even though by a governmental authority, the writ jurisdiction of a High Court cannot be invoked and the only remedy is institution of a suit. Thereafter, in Gujarat State Financial Corp. v. Lotus Hotels (P) Ltd. [(1983) 3 SCC 379], the Court held that a writ of mandamus can be granted against a governmental authority for enforcement of a contractual obligation, if essentially what the petitioner is seeking is enforcement of a statutory duty. In a similar vein, the Court in Bareilly Development Authority v. Ajai Pal Singh [(1989) 2 SCC 116] held that the writ jurisdiction cannot be invoked after a contract has been entered into unless statutory obligations are sought to be enforced, that is to say, a writ petition is maintainable in cases of statutory contracts but not in cases of non-statutory contracts. Pertinently, the Court further held that the actions of a governmental authority cannot be assessed on the touchstone of constitutional provisions after a contract has been entered into, which was even reiterated in Mahabir Auto Stores v. Indian Oil Corporation [(1990) 3 SCC 752].

One can see three jurisprudential principles emerging from the case law development until 1990: first, a writ is not maintainable if the issue complained of is breach of contract simpliciter or if the relief sought is simply for enforcement of contractual obligation; second, a writ is maintainable if the contractual obligations of a governmental authority are ensconced within a larger statutory framework and what the petitioner essentially seeks is enforcement of statutory obligations [statutory contract – non-statutory contract dichotomy]; and third, a writ is maintainable if the petitioner claims that the actions of a governmental authority at the time of entering or not entering into a contract (but not thereafter) are violative of Article 14 [pre-contract – post-contract dichotomy].

In effect, expanding on the last of the aforementioned three principles, the Court in Sterling Computers Ltd. v. M/s M&N Publications Ltd. [(1993) 1 SCC 445] and Tata Cellular v. Union of India [(1994) 6 SCC 651] held that judicial review, on the touchstone of Article 14, has to be restricted to the decision making process concerning entering or not entering into a contract or allotment of tender and the same cannot be extended to the merits of the decision itself (which dictum was reiterated in Michigan Rubber (India) Ltd. v. State of Karnataka [(2012) 8 SCC 216]). Clarifying the second of the aforementioned three principles, the Court in Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293] held that “a contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body” and that in itself will not raise an “issue of public law”. Thereafter, in State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] and NHAI v. Ganga Enterprises [(2003) 7 SCC 410], the Court reiterated the first of the aforementioned three principles i.e. “writ is not the remedy for enforcing contractual obligations” and “disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India”.

Then came the judgment in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [(2004) 3 SCC 553] which muddied the jurisprudential waters. This judgment misconstrued the rulings in Guruswamy, Ram Sanehi Singh and Lotus Hotels (P) Ltd.  The Court in ABL International Ltd. held that “once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution” and “a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable”. This dictum flies in the teeth of the aforementioned three jurisprudential principles as this dismantles both the statutory contract – non-statutory contract dichotomy and the pre-contract – post-contract dichotomy. This departure from the settled principles of law was continued in Noble Resources v. State of Orissa [(2006) 10 SCC 236]. However, it was clarified in Noble Resources that judicial review will be restrictive in cases of breach of contract unlike matters which are at the threshold of a contract.

Realizing that the ruling in ABL International inverted the settled principles, the Court in Joshi Technologies v. Union of India [(2015) 7 SCC 728] clarified and re-emphasized the pre-ABL International position, although in a new fashion. The Court in Joshi Technologies held as follows:

…in pure contractual matters the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution cannot be invoked. However, in a limited sphere where such remedies are available only when the non-Government contracting party is able to demonstrate that it is a public law remedy which such party seeks to invoke, in contradistinction to the private law remedy simipliciter under the contract…if the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, for example, where the matter is governed by a non-statutory contract…The Court may not examine the issue unless the action has some public law character attached to it…where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable” [public – private dichotomy].

Pertinently, the Court revives the first of the three jurisprudential principles discussed hereinbefore, and subsumes the second principle i.e. the statutory contract – non-statutory contract dichotomy within the public – private dichotomy. However, the Court departs from the third principle i.e. the pre-contract – post-contract dichotomy. Hence, even if a public law issue is raised subsequent to the formation of a contract whereto a governmental authority is a party and its actions are sought to be challenged, the same can be entertained in a writ petition.

The question arises: When can it be said that a public law issue is raised? The answer is: first, when the concerned contract is a statutory contract; or second, when the petitioner claims violation of Article 14 within the contractual domain. And, violation of Article 14 can only be claimed when the procedural due process is not followed – which is the position floated in Guruswamy (although not in very clear terms) and followed and strengthened in Sterling Computers Ltd., Tata Cellular and Michigan Rubber (India) Ltd. It is important to understand that Joshi Technologies maintains the jurisprudential thread which undergirded the position of law before ABL International. It merely spreads the Article 14 – procedural due process principle throughout the contractual field instead of restricting the same to matters at the threshold of a contract. The position on violation of Article 14 vis-à-vis procedural due process becomes more evident in the Three Judge Bench Judgment of Sudhir Kumar Singh wherein the Court held that Article 14 stood violated because the tender was cancelled by the concerned governmental authority by breaching the audi alteram partem rule.

Case Law on Writ Jurisdiction and Refund of Money: A Conspectus

The case law development on whether in a writ petition, a relief seeking refund of money simpliciter from governmental authorities can be granted has not witnessed such a tumultuous evolution like the previous issue this article dealt with. Rather, the development has been quite certain and consistent. In Burmah Construction Co. v. State of Orissa [AIR 1962 SC 1320], the issue that arose before the Constitution Bench was whether refund of tax unlawfully collected by the State could be sought in a writ petition under Article 226. The Court held that a writ petition is maintainable if the petitioner is essentially enforcing a statutory obligation on the part of the State or an officer of the State to refund the tax illegally collected. If the obligation to refund the tax illegally collected cannot be traced to a statutory provision, then the only remedy left is to file a suit. In Suganmal v. State of M.P. [AIR 1965 SC 1740], the Constitution Bench held that a writ petition solely for refund of money is not maintainable, however, the same can be entertained when refund of money is sought as a consequential relief. For instance, when the petitioner challenges an assessment order and succeeds. In such a case, the Writ Court can grant refund of money as a consequential relief. This ruling was followed in Salonah Tea Co. Ltd. v. Suptd. of Taxes [(1988) 1 SCC 401], U.P. Pollution Control Board v. Kanoria Industrial Ltd. [(2001) 2 SCC 549] and Godavari Sugar Mills Ltd. v. State of Maharashtra [(2011) 2 SCC 439] wherein the Court reiterated the “distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc.” Even ABL International reiterates this principle of law.

There is, however, one judgment manifesting a departure from this settled principle of law i.e. Popatrao Vyankatrao Patil v. State of Maharashtra [Civil Appeal No. 1600 / 2020 (SC), Judgment dt. 14.02.2020]. In Popatrao, the appellant was the highest bidder in a public auction concerning excavation of a sand block. In pursuance of the allotment of the tender, the appellant submitted a sum of money with the government treasury, despite which, he was not put in possession of the concerned sand block. After trying his luck with the governmental authorities, the appellant filed a writ petition before the High Court seeking refund of the money deposited. The High Court refused to entertain the writ petition and relegated the appellant to a suit. On appeal, the Supreme Court held that the action of the State smacked of arbitrariness and was violative of Article 14, and granted the relief of refund. There are two issues with this judgment: first, the Court fails to realize that violation of Article 14 only arises within the contractual field when the procedural due process is not followed. Mere non-refund of money will not give rise to the same; and second, the Court ignores the settled principle of law that refund of money can only be directed in a writ petition when the same is sought as a consequential relief. Popatrao can only be considered as an aberration which gives rise to another aberration viz. Unitech.

Unitech v. TSIIC: An Analysis

In Unitech, the facts were that Unitech Ltd. was awarded the tender to develop, design and construct an integrated township project / multi services aerospace park on a particular land of about 350 acres [“subject land”] by Andhra Pradesh Industrial Infrastructure Corporation [“APIIC”], the predecessor-in-interest of Telangana State Industrial Infrastructure Corporation [“TSIIC”]. In pursuance of the allotment of the tender, Unitech Ltd. paid a sum of Rs. 165 crores. After the allotment of the tender, in a different litigation, it was held that the title and ownership of the subject land did not vest in the Government of Andhra Pradesh. Hence, the very foundation of the contract between Unitech Ltd. and APIIC / TPIIC stood eroded and the contract stood frustrated. As a result, Unitech Ltd. sought refund of the aforementioned sum of money, along with interest, from APIIC and TPIIC but in vain.

Thereafter, Unitech Ltd. invoked Article 32 jurisdiction seeking refund of money [W.P. (C) 302 / 2017]. The Court ordered that it was “not inclined to entertain the writ petition under Article 32 of the Constitution. However, the petitioners, if so advised, may approach the High Court under Article 226 of the Constitution” [Order dt. 01.05.2017]. Unitech Ltd. preferred a writ petition under Article 226 before the High Court, and both the Single Judge and the Division Bench granted the relief of refund, although differing on the interest amount. The matter approached the Supreme Court. Strangely, the Judgment records, the State of Telangana and TSIIC did not raise any objection as to maintainability of the writ petition under Article 226 or the entitlement of Unitech Ltd. to seek refund of money under Article 226. Be that as it may, the Judgment conducts an academic analysis on the issue of maintainability. The Court relies on ABL International, Sudhir Kumar Singh and Popatrao to hold that the writ petition in the instant case was maintainable and the High Court had rightly granted the relief of refund of money under Article 226.

To create a semblance of compliance with the public – private dichotomy, the Court’s purported justification is that there is a violation of Article 14 as the action of the State is arbitrary / unfair since “TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest…” As we have seen, Article 14 violation has been restricted to cases where procedural due process was not followed by a governmental authority within the contractual domain. The same was the case in Sudhir Kumar Singh. The Court’s reliance on ABL International is misplaced as the pre-ABL International substantially stood revived in Joshi Technologies. Moreover, Popatrao is a mere aberration. If there was no allegation of non-compliance of procedural due process and the contract concerned was not a statutory contract, it is difficult to comprehend why the writ petition was held to be maintainable. Even if the Judgment is considered justifiable in expanding the scope of Article 14 violation in contractual matters, it clearly flies in the teeth of the settled principle of law that refund of money can only be claimed as a consequential relief in a writ petition, which was clearly not the case in Unitech. Therefore, it is humbly submitted that Unitech does not state the correct position of law and relies on the aberrational judgments, and as a consequence, muddies the jurisprudence on the subject.  

Vikash Kumar v UPSC: An Important Judgment on Disability and Reasonable Accommodation

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: 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)].


On the 11th of February, a three-judge bench of the Supreme Court handed down an important judgment in Vikash Kumar vs Union Public Services Commission. The Appellant was a civil services aspirant who suffered from writers’ cramp. However, his application for writing the Civil Services Examination with the assistant of a scribe was rejected by the UPSC, on the basis that he did not have a “benchmark disability”, as defined by the Persons With Disability Act, 2016 (in this case, limited to blindness, locomotor disability, or cerebral palsy, to the extent of 40%). On a perusal of the relevant rules and the Government Office Memorandum issued by the Ministry of Social Justice and Empowerment, the Court found that while individuals with a benchmark disability were entitled to a scribe, those individuals who did not fall within those categories could also be allowed to have one, in the event that they could produce a certificate to that effect from an approved government institution. Indeed, while the UPSC argued in Court that it was not permitted to deviate from the rule of benchmark disability in allowing for a scribe, the Ministry of Social Justice itself observed that there did exist non-benchmark disabilities that could significantly hamper writing ability. The Court then found that this was buttressed by the statutory policy as well: the PwD Act had a separate category for benchmark disability, that was limited to the issue of reservations; it was therefore unwarranted to deny other rights to the residual category of non-benchmark persons with disability. As Chandrachud J., writing for the Court, observed:

The second concept which is embodied in Section 2(s) is that of a person with disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others. (paragraph 26)  

Having established that the mere absence of a benchmark disability was not sufficient cause to deny the appellant the benefit of a scribe, the Court then went on to engage with the statutory purpose of the PwD Act. The Court noted that the purpose of the PwD Act was to deepen the social commitment to equality, and impose positive obligations – both upon the State and upon the private sector – to ensure that its objectives were fulfilled. For this reason, as an interpretive matter, limiting certain rights ipso facto to persons with a benchmark disability was clearly contrary to the statutory purpose:

Except in the specific statutory context where the norm of benchmark disability has been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability. (paragraph 41

Next, the Court considered the concept of reasonable accommodation, at the heart of the PwD Act. The Court noted that, in accordance with the PwD Act, disability was primarily a social construct, in the sense that the barriers imposed upon disabled individuals were because of the way society constructed itself, with a certain concept of able-ness as the norm (a good example of this is the use of stairs – and not ramps – as default structures to connect levels within a building). Consequently:

The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals’ dignity and worth is respected. Under this route, the “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.” (paragraph 45)

Chandrachud J. made four important points about the principle of reasonable accommodation, as set out under the PwD Act: first, it was an individualised principle, which meant that the needs of individuals would have to be considered on a case-by-case basis; secondly, as the purpose of the PwD Act was to advance equality, the burden would lie upon the entity denying reasonable accommodation, rather than the one seeking it; and thirdly, the obligation was immediate in nature – i.e., the right to reasonable accommodation was directly enforceable, and not subject to gradual or incremental fulfilment; and fourthly, reasonable accommodation required meaningful dialogue – or engagement – with the affected individual to determine how best to overcome the barrier in question (paragraphs 44 – 46). Each of these is a crucial interpretive finding in the context of the PwD Act, and the consequences remain to be worked out in the fullness of time.

Importantly, the Court also noted that its 2019 judgment in V. Surendra Mohan v State of Tamil Nadu, which had been severely criticised for its refusal to allow a visually disabled person from becoming a judge, was no longer good law, as it failed to take into account the principle of reasonable accommodation. In particular, Chandrachud J. observed:

By definition, reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden. (paragraph 54 )

Two important inferences follow from this. First, the kind of situation that was upheld as lawful in Mohan – where a blanket 50% visual impairment bar was imposed on qualification for judicial service – would be ipso facto unconstitutional, as it would make reasonable accommodation – in its individualised component – unenforceable; and secondly – other then the evidentiary burden lying upon the entity (State or private sector) denying reasonable accommodation, the legal standard to be met would be that of showing that reasonable accommodation would cause an “undue” or “disproportionate” burden. While this legal standard doesn’t entirely address the basic issue of a world where the norm is that of able-ness (because, by allowing denial of accommodation in “undue burden” cases, it retains able-ness as the norm), it goes some way towards doing so – and much will depend on how future judges interpret the term “undue burden.”

In conclusion – and in this specific case – the Court rejected the Union government’s arguments of potential misuse (using the striking analogy that the solution to copying in an exam using “chits” was not to impose a dress code that would make it impossible for some people to write the exam altogether), directed that the Appellant be allowed a scribe, and also directed the Ministry of Social Justice and Empowerment to frame guidelines on the issue of scribes, taking into account the individualised character of reasonable accommodation.

Vikash Kumar marks the Supreme Court’s first serious engagement with the concept of reasonable accommodation under the PwD Act, and sets out some important principles to help ensure that the Act can fulfil its role in advancing substantial equality under the Constitution. It lays a strong and durable foundation for future cases to build upon.

Guest Post: The Kerala High Court’s Judgment Reinforces the Need for an Anti-Discrimination Law

[This is a guest post by Megha Mehta.]


The Kerala High Court has recently held in Dr. Prasad Pannian v. The Central University of Kerala that sex-based discrimination per se is not covered by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH”]. According to the High Court, sexual harassment necessarily mandates unwelcome behaviour with sexual undertones (Dr. Prasad Pannian, ¶13). Therefore, the creation of a hostile work environment for a woman employee will not be actionable under POSH unless it is accompanied by direct or implicit sexual advances.

This definition of sexual harassment as being limited to sexual conduct, as outlined under both POSH and the Supreme Court’s Vishaka guidelines (Vishaka v. State of Rajasthan, (1997) 6 SCC 241) originates from the U.S. Equal Employment Opportunity Commission’s (“EEOC”) guidelines. As I have pointed out in an earlier post, feminist scholars in the U.S. have long-since critiqued this conceptualization for propagating a “desire-dominance paradigm” which exclusively focuses on sexual advances by male supervisors against female subordinates. This paradigm excludes equally discriminatory but non-sexual conduct against employees of all genders who challenge hegemonic masculinity. For example, repeated sexist comments on an employee’s performance can undermine their job prospects as much as unwelcome sexual advances, though the degree of social stigma attached to sexual conduct may be higher.

In other words, sexual desire is not the driving factor behind sexual harassment in most cases, though it may be an important component. Sexual harassment is primarily used as a “technology of sexism”, i.e., a tool for enforcing underlying gender hierarchies in various institutional settings. Further, current definitions of sexual harassment ignore that cisgender women are not the only victims of harassment, though they are disproportionately impacted. LGBTQ workers are equally vulnerable to harassment for challenging gender and sexuality norms. Moreover, men often commit same-sex harassment against other men whom they consider as being too “femininized” for the job, as is common in workplace/college hazing rituals. Similarly, women may also harass fellow women employees who are perceived as transgressing societally prescribed boundaries of femininity (See here).  

The manner in which we define sexual harassment has significant implications for the framing of redressal strategies. Though Article 15 of the Constitution of India (“Constitution”) prohibits discrimination in access to public spaces, there is no domestic equivalent of say, the U.S. Civil Rights Act of 1964, or the U.K. Equality Act 2010, for enforcing this prohibition. Similarly, though Article 16 guarantees equality of opportunity in State employment, there is no legislation or agency for monitoring workplace discrimination in the private sector, or even the public sector for that matter. Instead, POSH provides for the constitution of Internal Complaints Committees (“ICCs”) at workplaces to inquire into sexual harassment complaints. It also provides for Local Committees to inquire into cases in the unorganized sector, or where the complaint is against the employer.

Theoretically, ICC inquiries are supposed to be a more convenient mechanism than criminal trials as they involve less rigorous procedures and lower evidentiary burdens. However, in practice, ICC inquiries re-enact the same adversarial he-said, she-said conundrum. This detracts from how the employer or the general workplace environment may have facilitated gendered harassment, e.g., through a “locker room talk” atmosphere. Hence the failure to enforce gender-cum-labour rights is reduced to a “private affair between two private parties”.

Moreover, since ICC’s are constituted from within the same hostile workplace environment, and may include people who are acquainted with the harasser, this creates conflict of interest for conducting the inquiry impartially. They are also unlikely to recommend structural reforms. Consequently, if a sexual harasser knows that their employer is unlikely to treat complaints seriously, this increases their incentive for committing hostile acts. It also means that the victim is less likely to speak out due to fear of retaliation (See here for a more detailed analysis). This is precisely why the Justice J.S. Verma Committee on rape law reform had recommended constituting independent Employment Tribunals to adjudicate sexual harassment complaints (See here, p 130), though arguably ICCs should continue to remain an option for those who find internal remedies more convenient.

Further, neither the Vishaka guidelines nor POSH provide for claiming civil reliefs from an employer who has failed to ensure workplace equity. Notably, the genesis of Vishaka was a public interest litigation highlighting the injustice meted out to Bhanwari Devi, a social welfare worker for the Rajasthan State government, who was gangraped by upper-caste men in her village. The assault was allegedly in retaliation to Bhanwari Devi’s campaign against the practice of child marriage prevalent in the upper-caste community. However, the Supreme Court refrained from addressing the State’s failure to protect Bhanwari Devi from, or compensate her for, the caste and gender-based violence her work engendered. Instead, it noted that criminal adjudication against the perpetrators was sufficient to impose liability (Vishaka, ¶2). Similarly, POSH only posits non-compliance with its mandate as a criminal offence against the State, for which the maximum penalty is a fine of Rs. 50,000 (POSH, Section 26).

This position appeared to have changed when the Supreme Court recently held that under Vishaka, even non-sexual acts of prejudice and discrimination against women employees will constitute a violation of their fundamental rights under Articles 14 and 21 of the Constitution (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394). Accordingly, a woman may claim compensation from her employer for failing to redress such violation of her rights. I had opined in my earlier post (See supra) that this decision paves way for a broader definition of sexual harassment, with an emphasis on unwanted discrimination, not desire; and institutional, instead of individual liability. Prior to this, the Delhi High Court had also noted that sexual harassment is only a species of sex-based discrimination, referring to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) (Punita K. Sodhi (Dr.) v. UOI, (2010) 172 DLT 409, ¶82).

Unfortunately, Dr. Prasad Pannian shows that Indian sexual harassment law is yet to break out of the desire-dominance paradigm. The High Court circumvented Nisha Priya Bhatia by drawing a distinction between cases decided under Vishaka (such as the former), and the present case, which was instituted under POSH. Since the text of POSH circumscribes the definition of sexual harassment to sexualconduct, the High Court held that it was bound by the same. Further, that there was no need for referring to Vishaka or the CEDAW guidelines for interpreting the term more expansively. Therefore, the High Court chose to adopt a strict, textualist interpretation instead of referring to working women’s constitutional right to equality and dignity of life.

Dr. Prasad Pannian sets a troublesome precedent by allowing the text of the legislation, i.e., POSH, to control the constitutional guarantee against sex-based discrimination, instead of vice versa. On the other hand, in the High Court’s defense, judicial revisionism can only plug legislative gaps so far. Even if the definition of sexual harassment under POSH is interpreted in accordance with Nisha Priya Bhatia, it will continue to exclude forms of harassment such as sexual orientation discrimination, transphobia and same-sex harassment. It may also be argued that given the special stigma attached to sexual offences, sexual harassment and gendered discrimination need to be defined separately for legal purposes, though both are ultimately symptoms of the same malaise.

Further, POSH demarcates sexual harassment as a separate labor rights violation instead of accounting for its intersectionality with other forms of discrimination. There are no special procedures or aggravated penalties for protecting victims of caste-based or economically coerced sexual violence at the workplace. The Local Committee mechanism is largely inaccessible to women working in the informal sector, who are particularly vulnerable to such exploitation. Domestic workers don’t even have the option of civil relief against the individual respondent-they are legally compelled to pursue a police complaint (POSH, Section 11(1)).  POSH is also ill-equipped to deal with cases of third-party harassment, e.g., street harassment. In such cases, it is the State, rather than any specific employer, which is best placed to intervene to make public spaces safer for women.

Hence, the decision in Dr. Prasad Pannian reinforces the need for a holistic anti-discrimination legislation which mandates State and institutional liability for maintaining equality of opportunity at the workplace and equal access to public spaces. It also needs to be explored whether the constitutional guarantees under Articles 15, 16 and 19(1)(g) should be amended to expressly prohibit discrimination in the private sector, particularly in the context of housing and employment. Until then, courts will continue to compartmentalize sexual harassment within silos of individual sexual misconduct against women, instead of tracing its linkages to broader patterns of discrimination and inequality.

Horizontal Reservations and the Persistence of the Myth of Merit

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: 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)].


On 18th December, a three-judge bench of the Supreme Court handed down an important judgment clarifying the law on vertical and horizontal reservations (Saurav Yadav v State of UP). The judgment is an extremely complex one, so a preliminary explanation is in order.

Horizontal and Vertical Reservations

The term vertical reservations refers to reservations enacted under Articles 15(4) and 16(4) of the Constitution, which divide a candidate pool into the General, OBC, SC, and ST categories. While this division is not stipulated by the terms of the Constitution (Articles 15(4) and 16(4) use the phrase “backward classes” or “socially and educationally backward classes in addition to SCs/STs), it has come to be encrusted in both law and judicial decisions over the decades.

Now, until the judgment of the Supreme Court in N.M. Thomas, Articles 15(4) and 16(4) were treated as the sole repositories for reservations under the Constitution. That is, the “equality code” – Articles 14-16 was believed to embody a formal vision of equality, and Articles 15(4) and 16(4) were believed to embody specifically carved out exceptions, that allowed for reservations. Sporadic attempts to justify reservations under – for example – Article 16(1)’s equality of opportunity clause, by invoking a substantive vision of equality, were struck down the courts (albeit over some important dissents). However, that changed in N.M. Thomas, when the Supreme Court clarified that Articles 15(4) and 16(4) were not exceptions to, but restatements of, the equality principle contained in Articles 15(1) and 16(1). This was a seismic shift in the jurisprudence, because in the course of one judgment, the Court went from holding that the Constitution was committed to bare formal equality, to holding that it was committed to substantive equality that must account for actually existing differences between people. While judgments after N.M. Thomas have chipped away at its scope, and blocked its transformative potential from truly taking shape, the doctrine itself has, nonetheless, been re-affirmed.

Now, a necessary corollary of Thomas is that reservations are no longer solely facilitated by Articles 15(4) and 16(4). If 16(4) (reservations), for example, is a restatement of 16(1) (equality of opportunity), it must follow that genuine equality of opportunity permits (and may even require) reservations. Consequently, government policies can provide reservations for groups that do not follow the General-OBC-SC-ST division, as long as it is in service of genuine equality of opportunity. Now this is what gives rise to horizontal reservations in favour of (for example) women (where Article 15(3) is also involved), army veterans, the transgender community (although that has not happened yet), and so on. The reason why this set of reservations is called “horizontal reservations” is because it cuts across vertical reservations, in a manner of speaking. Imagine a graph divided into four vertical bars (General, OBC, SC, ST), in accordance with their respective quotas. Now imagine a horizontal bar (“women”) that cuts across these four vertical bars (because women can belong to any of the four categories mentioned above, and the horizontal reservation in question is for “women” as a class).

The Question in Saurav Yadav

Because of the way our reservations jurisprudence has shaped up, the intersection of horizontal and vertical reservations throws up a host of technical, complicated questions. Should horizontal reservations be calculated across the board (i.e., say, 30% of women in X department), or should it be “compartmentalised” (i.e., each category – General, OBC, SC, ST must have 30% of women)? The Supreme Court has, in the past, suggested that the compartmentalised approach would be better, and in my submission, that is correct, as it takes care of inter-sectional concerns. In Saurav Kumar, however, the question was even more technical: if State policy provided for an X% horizontal quota for women, then would women candidates whose overall scores were high enough for them to be recruited without the benefit of reservation, be counted against the quota or not? Or, in other words: let us assume that State policy requires 30% reservation for women. After the selection process, it is found that 10% of the successful candidates without the application of the quota are women. Does that now mean that the quota comes down to 20%, or does it mean that it remains 10% + 30%?

In the case of vertical reservations, this issue had long been sorted, with the Supreme Court making it clear that an SC/ST/OBC candidate whose scores were high enough for the general category, would be “counted” as having made it through that category; and consequently, that candidate would not be treated as SC/ST/OBC for the purposes of reservation. In the case of horizontal reservations, however, the position was unclear, as different High Courts had taken different views on the issue. In Saurav Yadav, the Supreme Court clarified the position, and held that – like the case of vertical reservations – a candidate who belonged to a horizontally reserved category, but whose score was high enough, would not be “counted” as having come through that category for the purposes of calculating quotas.

Analysis

In my submission, this decision is correct. However, I believe that the reasoning deployed by the Court to get there is not. In the majority opinion, Justice Lalit entered into a complicated analysis of various hypothetical scenarios that would arise when both methods were deployed: i.e., counting the high-scoring candidate against the quota, and not. He found that in some cases, horizontal and vertical reservations would intersect in a manner that if the high-scoring candidate was counted against the quota, a number of adjustments would follow, the end result of which might be that a higher-scoring candidate in the overall list would be bumped off in favour of a lower-scoring one (in the interests of space, I don’t want to reprise the calculations here, that run to around thirty pages – interested readers can refer to the judgment for the steps involved in the process). Justice Lalit then found that if, on the other hand, in the same situation, the high-scoring candidate from the horizontally reserved constituency was not counted against the quota, the overall list would have more higher scoring members. He then concluded that the second method enabled “merit” to a higher degree, and was therefore the constitutionally correct way of implementing horizontal reservations. In a brief concurring opinion, with a caveat that I shall later come to, Justice Bhat agreed with this analysis.

In my view, however, there was a much simpler reason for the outcome. The rationale for why, in the case of vertical reservations, a high-scoring candidate is not counted against the quota, is a simple one: the bases of reservations are the historical and structural barriers that prevent certain groups of people from gaining equal access to educational or employment opportunities. It may be the case that a combination of privilege, luck, and work enables some individual members of disadvantaged groups to overcome these barriers; however, that does not change the underlying logic of institutional disadvantage – and remedy – that structures reservation policy. For this reason, the purposes of reservations would be defeated if the numerical quota included those individuals who had managed to overcome disadvantage.

Now, this logic applies in the same fashion to (most) cases of horizontal reservations: like vertical reservations, horizontal reservations are premised on achieving genuine equality of opportunity by accounting for existing structural and institutional disadvantage. Consequently, precisely the same logic of not “counting” individuals who overcome those barriers against the quota should apply. That is all that the Court needed to arrive at its (correct) conclusion.

Unfortunately, however, the Court’s reasoning – that framed the entire question as one of “merit” – was not only unnecessary, but actively problematic at a conceptual level: effectively what the Court said was that models of reservation would be selected based on which one – in a strictly formal and technical sense – was deemed to advance “merit” more than the other (and “merit” here refers to scores in tests). “Merit”, thus, became the normative touchstone on which to adjudicate between these different models. But this took an entirely uncritical approach towards the concept of “merit” itself, something that another bench of the Court recently warned against, in B.K. Pavitra’s Case. There, Chandrachud J. had correctly observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

In other words, therefore, the concept of “merit” – here constitutionally defined as “efficiency of administration” – could not be understood in isolation from the Constitution’s social justice goals, and, in particular, could not be reduced to something as simplistic and formal as scores in an exam (which, as we well know by now, themselves reflect and entrench social privilege). The Court’s approach in B.K. Pavitra is in stark contrast to its approach in Saurav Yadav where, as we have just seen, merit-defined-as-scores-in-the-exam was uncritically treated as the normative frame within which to examine competing models of reservation.

While Justice Bhat’s concurring opinion appeared, at various points, to reflect this concern, unfortunately, he too stressed the formal conception of “merit” as a normative frame. This conflict is summed up in paragraph 15 of his judgment, where he noted that:

I would conclude by saying that reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.

While the first sentence followed up on Pavitra’s insight, the rest of the paragraph slipped back into the rhetoric of merit that structured the majority judgment. Now, as we have seen above, in this case, the philosophical difference did not lead to a difference in outcome. However, it is easy to imagine future cases in which it will, and past cases (such as Indra Sawhney’s affirmation of the 50% cap) where it already has. The future of reservation policy as a vehicle of achieving social justice will be significantly influenced by whether and to what extent the Supreme Court is willing to critically interrogate merit as itself being a function of social privilege that the Constitution is committed to equalising, and whether – on the other hand – it continues to hold on to a view that sees “merit” and reservations locked in a war with each other, with the adjudicatory function being to “balance” the two. The difference is a subtle one, but – as this post should demonstrate – a critically important one in the broader struggle for constitutional justice.

Notes from a Foreign Field: The South African Constitutional Court on the Rights of Domestic Workers

Last week, the South African Constitutional Court handed down an important judgment concerning the rights of domestic workers. In Mahlangu v Minister of Labour, the question before the Court was whether the exclusion of domestic workers from South Africa’s social security law – the COIDA – was unconstitutional. The Court unanimously answered that it was. The majority judgment, in particular,  repays careful study, as it advances constitutional jurisprudence in relation to inter-sectionality, indirect discrimination, and dignity, in important directions.

In this post, I do not consider the challenge based on Section 27 of the South African Constitution, that guarantees the right to social security. I will consider, instead, the equality and dignity challenges.

Equality and Non-Discrimination

It was argued that the blanket exclusion of the entire class domestic workers from the scope of the COIDA violated the right to equal treatment, and amounted to unfair discrimination against them, in contravention of Section 9 of the South African Constitution. As far as the right to equal treatment went, the government conceded the case at the bar, and the Court therefore returned a finding that the exclusion of domestic workers was irrational and served no discernible legislative goal.

Let us focus, therefore, on the unfair discrimination argument, centred around Section 9(3) of the South African Constitution. Section 9(3) prohibits direct and indirect discrimination on a number of familiar grounds (race, sex, sexual orientation, religion, and so on). “Domestic work” is not a listed ground under Section 9(3), and so this was not a case of direct discrimination. The Court found, however, that the exclusion constituted a case of indirect discrimination:

… because, as the applicants and amici submit, domestic workers are predominantly Black women. This means discrimination against them constitutes indirect discrimination on the basis of race, sex and gender. (para 73)

Note, however, that race, sex and gender are multiple grounds. This, therefore, took the Court into the concept of inter-sectionality, which it defined as the acknowledgment that “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play.” (para 76) Consequently:

It is undisputed between the parties that domestic workers who are in the main Black women, experience discrimination at the confluence of intersecting grounds. This simultaneous and intersecting discrimination multiplies the burden on the disfavoured group. (para 84)

It was evidently clear, therefore, that (a) a predominant number of domestic workers were black women, and (b) black women were located at intersecting axes of discrimination. This is what set apart the exclusion of domestic workers, as opposed to the exclusion of defence forces or the police (who, in any event, had access to other social security schemes):

Multiple axes of discrimination are relevant to the case of domestic workers. Domestic workers experience racism, sexism, gender inequality and class stratification. This is exacerbated when one considers the fact that domestic work is a precarious category of work that is often undervalued because of patronising and patriarchal attitudes. (para 90)

Indeed, in this case, as the Court observed, the reason why domestic workers were predominantly black women was itself founded at the intersection of racial and gender discrimination, at the time of apartheid:

The combination of influx control laws and the migrant labour system also had a particularly onerous effect on Black women. Taken together, they restricted the ability of Black women to seek and obtain employment opportunities, thus rendering them dependent on absent husbands or sons. Essentially, this all sedimented a gendered and racialised system of poverty, that was particularly burdensome for Black women. (para 98)

Consequently, their present exclusion from COIDA amounted to nothing more than a continuation of the same intersectional discrimination (para 100). For this reasons, the Court therefore held that the right against unfair discrimination had been breached.

Dignity

The Majority’s dignity analysis was very interesting. In brief, it noted that the reason why domestic work, alone, had been excluded from the protective scope of the COIDA was because it was not considered to be “real work”, as traditionally understood. This attitude towards domestic work was rooted in patriarchal assumptions. As the Court noted, therefore:

Historically, in varying contexts across the world, domestic work has generally not been regarded as real work and has been undervalued for that reason. In the American context, it has been argued that the historical undervaluation of domestic workers stems primarily from the gendered and racialised nature of those who have traditionally done this work, namely African-American women. To this end, domestic work there has been undervalued for two reasons. First, it has been described as work done by a “despised race”. Second, it has been regarded as “women’s work” or a “labour of love” having no economic currency. (para 110)

This, when combined with the exploitation built into domestic work, therefore made it clear that “the exclusion of domestic workers from COIDA is an egregious limitation of their right to dignity, alongside its infringements on their other constitutional rights. It extends the humiliating legacy of exclusion experienced during the apartheid era into the present day, which is untenable.” (para 115)

Analysis

The Constitutional Court’s judgment highlights the importance – and indeed, the indispensability – of paying close attention to context in any equality and discrimination-oriented examination. The Court’s inter-sectionality and dignity analysis was rooted in context – both the historical context that was responsible for compelling a disproportionate number of black women into domestic work, and the continuing context of how intersecting axes of disadvantage worked against them. Grounding domestic workers’ exclusion within this context was what allowed the Court to find that there existed both indirect and inter-sectional discrimination, as well as a violation of dignity.

The judgment is also important because – if we bracket the Section 27 analysis – what was at issue was not discrimination in its traditional sense (such as, say, different pay for men and women), but that legislation had not extended its benefits to a discrete category of work (domestic work). Historically, Courts have been reluctant to expand the scope of protective laws simply on the basis that certain categories are not within their scope, as that has been considered to be a matter of policy. The Constitutional Court’s application of the discrimination and dignity framework, however, dispensed with any such objections, as the very fact of exclusion was grounded within clear constitutional prohibitions.

This is important for a third reason: labour law – with its inclusions and exclusions – has often been considered to be an autonomous domain, with constitutional principles exercising weak scrutiny, at best. The Constitutional Court’s judgment demonstrates how rigorously testing labour law upon the touchstone of the Constitution will ensure that the rights of the most vulnerable are not left to the mercy of arbitrary legislative classifications (whether it was the exclusion in this case, or otherwise artificial definitions of “employees” or “employment relationships”, which equally serve to limit access to labour rights).

The advances made by the Constitutional Court in the domain of inter-sectionality, indirect discrimination, and dignity, are worthy of emulation. In 2018, in Navtej Johar, the Supreme Court gestured towards inter-sectionality, and various High Courts have tentatively begun to articulate the concept indirect discrimination. It remains for the Courts to firmly embed these concepts into our equality and discrimination jurisprudence. It is also crucial for Courts to make clear that labour law is a critically important terrain for actualising constitutional values, and that differential or discriminatory access to labour rights raises serious constitutional concerns. Here again, the judgment of the South African Constitutional Court shows the way.

 

 

 

 

 

 

Notes from a Foreign Field: Developing Indirect Discrimination – Bringing Fraser to India [Guest Post]

[This is a guest post by Gauri Pillai.]


Article 15(1) prohibits the State from discriminating against any citizen ‘on grounds only of religion, race, caste, sex, place of birth or any of them’. The Supreme Court, in the now infamous Nergesh Meerza, read Article 15(1) to mean that discrimination should not be made ‘only and only on the ground of sex’ but could be made ‘on the ground of sex coupled with other considerations.’ On the one hand, the ‘on ground only of…sex’ test functions to bring in a requirement of intention to discriminate. The presence of a reason for discrimination—say, to protect women—operates as an ‘other consideration’, bringing the rule outside the scope of the non-discrimination guarantee, even if the effect of the rule is to disadvantage women (see here). Discrimination in thus understood to mean intentional, individual acts of prejudice tied to the ‘moral blameworthiness’ of actors. There is no recognition that ‘such prejudices are frequently embedded in the structure of society’, the ‘unquestioned norms, habits, and symbols in the assumptions underlying institutional rules and the collective consequences of following those rules’: in other words the ‘everyday practices of a well-intentioned society’, beyond the conscious coercive actions of a ‘tyrannical power’ alone.  On the other hand, the ‘on ground only of…sex’ test excludes indirect discrimination. Facially neutral rules having an adverse effect on members of a specific group would amount to ‘other considerations’ beyond the listed ground, thus placing such rules outside the reach of Article 15(1) (see here).

However, the Supreme Court trilogy in Sabarimala, Joseph Shine and Navtej Johar offers an alternate reading of the non-discrimination guarantee. First, the scope of Article 15(1) was extended to ‘institutional and systemic discrimination against disadvantaged groups’, thereby tackling ‘structures of oppression and domination’ excluding members of these groups from full and equal social, economic, political and cultural participation (Chandrachud J., concurring opinion, Sabarimala, paragraph 117 and Joseph Shine, paragraph 38). Thus, there was a shift towards understanding discrimination in a structural sense. Second, the central enquiry under Article 15(1) was no longer the intention of the discriminator. Rather, the ‘primary enquiry to be undertaken by the Court’ was whether a rule, in form or effect, ‘contributes to the subordination of a disadvantaged group of individuals’ (Chandrachud J., concurring opinion, Joseph Shine, paragraph 38). Finally, the ‘on ground only of…sex’ test was dismissed as a ‘formalistic interpretation’ of Article 15(1), because it failed to recognise the ‘true operation’ of discrimination (Chandrachud J., concurring opinion, Navtej Johar, paragraph 36). Instead of relying on the formal basis of classification—the listed ground ‘plus’ the facially neutral criterion—Article 15(1) was reoriented to focus on the effect a facially neutral rule. In other words, indirect discrimination was recognised, and brought within the scope of the non-discrimination guarantee.

Despite the steps forward, several questions still remain unanswered. How does the recognition of discrimination as a structural phenomenon affect the doctrinal functioning of the non-discrimination guarantee? What is the test for indirect discrimination? How should courts assess the impact of a rule? What forms of impact are relevant? What kind of evidence is suitable and necessary for such impact assessment? Answers to these questions are crucial to enable Courts to apply these concepts going forward. In their absence, these ideas could remain at the level of rhetoric, without translation into doctrine. In this post, I present the recent decision by the Supreme Court of Canada in Fraser v Canada—interpreting the non-discrimination guarantee under Section 15 of the Canadian Charter—as offering clear responses to these questions, and thus providing normative and doctrinal guidance for India. However, before I get into discussing the case, it is important to interrogate briefly why a decision from Canada is relevant for constitutional jurisprudence in India: why should India listen to Canada?

Canada offers a helpful comparative because the constitutional function of the non-discrimination guarantees in the Canadian Charter and the Indian Constitution bear significant similarities. As the Court recognises in Fraser, ‘the root of s. 15  is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed’ (paragraph 77). An identical commitment underlies Article 15, the object of which has been identified as guaranteeing protection to ‘those citizens who had suffered historical disadvantage’ by removing their ‘age-long disabilities and sufferings’. This is reinforced by the placement of Article 15 within the ‘equality code’, consisting of Article 16, which permits the State to treat members of disadvantaged groups differently through reservations, offering them ‘real and effective’ equal opportunity for employment; Article 17, which abolishes untouchability to free Dalits from ‘perpetual subjugation and despair’, ‘social inequity, social stigma and social disabilities’; and Article 18 which prohibits an Indian citizen from accepting titles in order to dismantle social hierarchy, or the perceived superiority of some over the other.

Having set out the similarities in the constitutional vision underlying the non-discrimination guarantees in India and Canada, I now turn to Fraser. In 1997, the Royal Canadian Mounted Police (‘RCMP’) introduced a job-sharing program to provide its members an alternative to taking leave without pay. Under the program, two or three RCMP members could split the duties and responsibilities of one full-time position, allowing each participant to work fewer hours than a full‑time employee. The petitioners, three female employees of the RCMP, enrolled in the job‑sharing program along with 137 other members. Most participants were women, and they cited unilateral responsibilities for childcare as their reason for joining the program. Ms. Fraser described feeling ‘overwhelmed’ as she tried to balance work and family; Ms. Pilgrim felt like she was ‘on a treadmill’; and Ms. Fox recounted the experience as ‘hell on earth’ (paragraph 7). The RCMP introduced a rule deeming the job-sharing position part-time work for which participants could not receive full-time pension credit. This policy was challenged by the petitioners as having a disproportionate, adverse impact on women, thus violating their right to non-discrimination under Section 15.

The Court began by identifying the shift away from a ‘fault-based’ conception of discrimination towards an ‘effects‑based model which critically examines systems, structures, and their impact on disadvantaged groups’. The shift, the Court observed, was premised on the recognition that discrimination is ‘frequently a product of continuing to do things the way they have always been done’ rather than an intentional, prejudicial act by an individual actor (paragraph 31). In other words, the Court identified discrimination as structural, in general. The Court then set out how parenting is structured socially in Canada. Citing evidence, the Court observed that the public sphere, including the workspace, continues to be built on the male norm, and requires an ‘unencumbered worker’ with no responsibilities of care. At the same time, the private sphere, including the home, continues to be built on the labour of women who unilaterally undertake a major share of parental responsibilities (paragraph 104). In other words, the gendered division of labour, a product of inequality between the sexes, is systemically built into the ‘everyday practices’ of Canadian society. While this recognition is significant in and of itself, how did it influence the claim under the non-discrimination guarantee?

The lower courts rejected the discrimination claim holding that while most employees who lost out on pension benefits due to job-sharing were women, the loss occurred due to the ‘choice’ of the petitioners to job-share. The Supreme Court in Fraser however used the understanding of discrimination as structural—in general and in the specific context of parenting—to contest this notion of ‘choice’. The Court observed that choice should not be assessed as against an ‘autonomous, self-interested and self-determined individual’. Rather, a ‘contextual account of choice’, taking into account the ‘social and economic environments’ in which choices play out is necessary. The Court then applied this contextual understanding of ‘choice’ to women’s decision to job-share. The Court argued that the decision to job-share is far from an ‘unencumbered choice’. Against the structurally unequal institution of parenting, the only available option for women—‘euphemistically labelled choice’—is to opt for forms of accommodation like job-sharing, which are associated with lower wages, fewer benefits, fewer promotional opportunities, and minimal or no retirement pensions. If so, penalising them for this ‘choice’ by denying them pension benefits both punishes them for inequality, and perpetuates such inequality by exacerbating women’s socio-economic disadvantage, and entrenching stereotypes about women as ‘bad employees’ who ‘do not merit or want more responsible, higher‑paying jobs because they will inevitably prioritize family over work’. Thus, the Court highlighted the ‘flaws of over-emphasising choice’ in the Section 15 enquiry: ‘by invoking the “choice” to job‑share as a basis for rejecting the s. 15(1)  claim, the [lower courts] removed the “challenged inequality from scrutiny, effectively taking it off the radar screen so as to circumvent examination of the equality issues at stake”’ (paragraphs 88-92).

This does not imply that in the absence of inequality, women would never opt to job share and spend time with their children. The Court in fact recognised this by holding that ‘differential treatment can be discriminatory even if it is based on choices made by the affected individual or group’. This is because discriminating on ground of certain choices—like the decision to parent—violates human dignity and is thus inherently discriminatory, independent of inequality (paragraphs 86-86). Thus, the decision to parent was implicitly recognised as valuable by the Court, and job-sharing was seen as facilitating the decision by removing the disadvantage associated with it in the employment sphere. However, the Court did not develop this line of reasoning, as it mapped onto a claim of discrimination on ground of parental status which did not need to be pursued in light of the gender discrimination claim (paragraph 114).   

In assessing ‘choice’ in light of the structurally unequal institution of parenting, the Court also recognised the reason why it was women who primarily made the ‘choice’ to job-share:

[a] number of structural conditions push people towards their choices, with the result that certain choices may be made more often by people with particular “personal characteristics”. This is a key feature of systemic inequality—it develops not out of direct statutory discrimination, but rather out of the operation of institutions which may seem neutral at first glance (paragraph 90).

This then brought the Court to the issue on indirect discrimination. It also normatively grounded the recognition of indirect discrimination as a necessary response to the interaction between seemingly neutral rules and prevalent structural inequality. Indirect discrimination, the Court held, occurs when ‘a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground…Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage’ (paragraph 30). The Court then set out a two-stage doctrinal test for assessing indirect discrimination.

At the first stage, the Court would enquire whether a rule, in effect, creates a distinction on the basis of a protected ground by having a ‘disproportionate impact’ on members of a group within the ground. The Court discussed the nature of evidence that could be used to prove this claim. On the one hand, evidence providing the ‘full context of the claimant group’s situation’ would be useful to demonstrate that ‘membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group’. However, the Court was careful to note that evidence on issues which predominantly affect certain groups may be under‑documented. As a result, claimants may have to rely more heavily on their own evidence or evidence from other members of their group, rather than on government reports, academic studies or expert testimony. On the other hand, evidence—including statistical evidence—about the outcome of the rule, or a substantially similar one, in practice could offer ‘concrete proof that members of protected groups are being disproportionately impacted’. The Court clarified that there is no universal threshold on what level of statistical disparity is necessary to demonstrate that there is a ‘disproportionate impact’. Declining to craft rigid rules, the Court held that it would vary depending on the case. The Court also noted that both kinds of evidence are not always required: ‘in some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate’ (paragraphs 50-72).

Once the petitioner establishes that the rule, in effect, creates a distinction on the basis of the protected ground, the second stage of the enquiry starts. At this stage, the Court asks whether:

the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage…The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (paragraph 76).

Thus, a focus on impact or effect of the rule is built into both stages of the test: first to determine whether the rule draws a distinction on the basis of a protected ground, and second to assess whether the distinction perpetuates disadvantage and is thus discriminatory. Applying the test to the case at hand, the Court held that the rule denying full pension benefits to job-shares, though facially neutral, had a ‘disproportionate impact’ on women. The Court relied on statistics—from 2010‑2014, all RCMP members availing job-share were women, and most of them cited childcare as their reason for doing so—and other evidence—commission reports, academic work and judicial decisions—’about the disadvantages women face as a group in balancing professional and domestic work… because of their largely singular responsibility for domestic work.’ This evidence, the Court held, established the ‘clear association between gender and fewer or less stable working hours’, and proved that the rule drew a distinction in effect between men and women, satisfying the first stage (paragraphs 97-106). Coming to the second stage, the Court held that the denial of pension benefits to women exacerbates women’s historical disadvantage. It impacts them socio-economically, with evidence suggesting that the feminisation of poverty is linked to the disparities in pension policies. At the same time, it also entrenches ‘a long‑standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper‑income full‑time employees with long service, typically male’. In other words, it retains the ‘male pattern of employment’, continuing to construct the public sphere around the male norm. In light of these ‘far‑reaching normative, political and tangible economic implications’ of the rule, it was held to perpetuate women’s disadvantage, and thus discriminate against women (paragraphs 107-113).

Thus Fraser demonstrates, with great clarity, how understanding discrimination as a structural phenomenon translates into the functioning of non-discrimination guarantee. It allows the Court to resist the rhetoric of ‘choice’ which can be used to subvert claims of discrimination. It also offers a compelling normative grounding for the recognition of indirect discrimination. Fraser further lays out a cogent two-stage test for establishing indirect discrimination, indicates the forms of impact that are relevant and describes the nature of evidence which can be used to prove such impact. It therefore provides clear normative and doctrinal guidance to India in developing the constitutional jurisprudence on indirect discrimination.

Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: 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)].


[This is a guest post by Ashwin Vardarajan.]


On 6 July 2020, the University Grants Commission (‘UGC’) released guidelines directing all colleges, universities and institutions of higher education to conduct final year/ terminal semester examinations before 30 September 2020 (‘Guidelines’). These Guidelines had been released at a time when the number of COVID-19 cases continued, and still do, to increase exponentially with every passing day; and have added to additional stress on universities, colleges and students across the country. Naturally, several petitions were filed before the Supreme Court (‘SC’) challenging these Guideline on several grounds, which were all collectively heard and decided by a three-judge-bench in Praneeth K and Ors. v. University Grants Commission [Writ Petition (Civil) No.724 of 2020] (‘Praneeth’) on 28 August 2020.

Among other things, two constitutional questions were raised against the Guidelines before the SC: first, whether the UGC demanding Universities to conduct examinations under Section 12 of the University Grants Commission Act, 1956 (‘UGC Act’) were referable to Entry 66, List I, Seventh Schedule (‘E-66’) of the Constitution of India (‘Constitution’); and second, whether the Guidelines violated the rights of students under Articles 14 and 21 of the Constitution. Not only does the SC – in its 160-page judgment – fail in its duty to logically appraise the existing position of law, it also adopts a surprisingly un-empathetic approach towards the plight of the students . Furthermore, the judgment has also created friction within the existing framework of law. This essay examines the two constitutional questions enumerated above.

E-66 and ‘standards of education’

The first issue was whether the Guidelines prescribed under Section 12 of the UGC Act were beyond the UGC’s competence referable to E-66. E-66 reads as follows:

Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions

The SC, inter alia, looked at the meaning of ‘standards for education’ – within the meaning of E-66 – through a catena of decisions and proceeded to determine whether the Guidelines also fell within the gamut of the entry. Section 12 of the UGC Act allows the UGC to undertake steps ‘for the determination and maintenance of standards of teaching, examination and research in Universities’, and the impugned Guidelines were issued under this provision. For the SC, use of the term ‘examination’ under Section 12 meant that the UGC is permitted by law to demand universities to conduct examinations through the Guidelines vide E-66 – as it stimulates coordination and determination of the ‘standards of education’, which also includes ‘standard of examination’. The SC understood Section 12 in light of the preamble of the UGC Act, and held that the phrase ‘standard of examination’, under Section 12, fell in line with the phrase ‘standard of education’ within the language of E-66, thus ruling in favour of the UGC (Praneeth, paras.57, 62).

Admittedly, a Constitution bench of the SC in Preeti Srivastava v. State of MP [(1999) 7 SCC 120] had set down several illustrations to define ‘standards of education’ under E-66. For them, ‘standards of examination’ – which included ‘the manner in which the papers are set and examined and the clinical performance is judged’ – was contained within the phrase ‘standard of education’. This remark, however, was made specifically in the context of how ‘examinations’ need to improve the ‘standards of education in an institution or college’ (Preeti Srivastava, SCC p.154-5).

This means that ‘standard of education’ under E-66 speaks of the ‘quality’ (as a synonym for ‘standard’) of examinations. Therefore, the standards of questions in an exam, their difficulty levels, who would correct and formulate the questions, and other aspects of like nature would ideally fall within the bracket of ‘standard of examinations’ as a taxonomy of ‘standard of education’ under E-66. But here, the Guidelines do not alter the examinations’ character to further ‘coordination or determination’ in ‘standards of education’. They merely mandated the Universities to organise and complete them before 30 September 2020. In this light, SC’s conclusion that the Guidelines are in consonance with E-66 through Section 12 of the UGC Act is far-fetched and, at best, incorrect.

The petitioners also relied on the SC’s decision in Modern Dental College v. State of MP [(2016) 7 SCC 353] (‘MDC’) – where it was categorically observed that ‘standard of education…would not include conducting  of  examinations’ as it does not affect any ‘standards’ – to establish that the Guidelines issued under Section 12 are not in referable to E-66. In MDC, the SC was, inter alia, tasked to determine whether ‘admissions’ were covered exclusively under E-66. While answering the question in the negative, the SC passingly noted that mere conduction of examinations would not be included under E-66 (MDC, para.101). However – and it is submitted, incorrectly – the SC rejected this assertion by the petitioners by distinguishing MDC on facts; and in their quest to do so, they observed the following:

62. The Constitution Bench in paragraph 101 has used the expression ‘not include conducting of examination etc.’  In the present case, there is no claim on behalf of the   UGC that it is the UGC which shall conduct the examination of the graduate and postgraduate students. The examinations are to be conducted by the respective Universities only. The above observations made by Constitution Bench in paragraph 101 as relied by learned senior counsel for petitioner, cannot be treated to be laying down any preposition that University Grants Commission has no competence to lay down any standards with regard to examination.

This clearly misses the point. Put simply, the petitioners never argued that the UGC could not conduct the exams. The petitioners rather argued against the Guidelines being in furtherance of coordination of determination of the ‘standards of education’ vide Section 12 of the UGC Act – which essentially meant that the UGC could not demand/force colleges to conduct examinations within a deadline. Demanding colleges and universities to merely conduct ‘examinations’ would not lay down the standards of how exams are to be conducted, in the sense that they do not alter the quality or determining principles surrounding the examinations. Thus, the SC’s misinterpretation (of arguments and law) led them to go beyond what E-66 has been historically interpreted to mean, and creates friction within the existing position of law. However, considering that the decision was specifically in regards to Section 12 of the UGC Act, a future bench might yet distinguish its reasoning on facts.

Fundamental Rights and Fundamental Omissions

The petitioners also contended that the Guidelines violates the students’ rights under Articles 14 and 21 of the Constitution. For the petitioners, prescribing a single date deadline for examinations throughout India treated ‘unequals as equals’, which amounted to an Article 14 violation. And in light of the exponential rise in the number of COVID 19 cases, it was contended that ‘lakhs of students, teaching and nonteaching staff will be forced to risk their health and lives of their family members if they are asked to participate in the Final year/ Terminal examination’ (Praneeth, para.76). The SC rejected both the contentions as follows:

First, for them, the UGC ‘rightly’ fixed a common deadline to maintain uniformity in the academic calendar and that their decision was taken after careful assessment of the situation throughout the country, which ensured the ‘welfare of students’ and protected the ‘career prospect’ of final year students. To them the ‘criticism’ of the Guidelines ‘that they are unreasonable does not inspire any confidence.’ (para.74-5).

Second, clause 6 of the Guidelines required Universities to ‘carry out the academic activities following necessary protocols/guidelines/directions/advisories issued by the Central/State Governments and MHRD/ UGC from time to time, in view of COVID-19’. This took the SC to the official memorandum (‘OM’) released by the HRD Ministry on 6 July 2020, which laid down the standard operating procedures universities and colleges would follow while conducting examinations. Upon reading the Guidelines read with the OM, the SC found it to be ‘abundantly clear that UGC, MHRD … are fully concerned with the health of all stakeholders’ and led them to the conclusion that Article 21 was not in violation (paras.81-2).

At the onset, one notes that the court rejected the argument by stating that the Guidelines were not ‘unreasonable’ or ‘manifestly arbitrary’. Article 14 concerns ‘equality’ before law, and courts must ideally acknowledge that the impugned law leads to unequal treatment before deciding whether such treatment was ‘reasonable’ or not; and they clearly did not do so although such treatment is violative of Article 14. Further, it is bewildering how setting one uniform date throughout the country for examinations was enough to treat unequals as equals in a reasonable way. UGC governs over thousands of colleges and several hundred universities throughout India, and not all those institutions would have students socially and economically capable of travelling to different cities for giving examinations, or afford safe means of transportation . This would, as the Delhi High Court in Madhu v. Northern Railway [2018 SCC OnLine Del 6660] has observed, have a ‘disparate impact’ on the disadvantaged students or lead to an operational inequality (also, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) and here). The SC inability to consider this issue through the aforementioned lens reflects a serious gap in reasoning, and a lost opportunity.

Further, the SC’s assessment of Article 21 was flawed, as their decision seems to have given precedence to the concerns raised by Government functionaries without actually appraising whether the life and personal liberty under Article 21 is at a threat of violation – which is an accepted ground for filing an Article 32 petition (and seems to have been the case here). Their reliance on the OM is further impeachable as it overlooks the risks students would be exposed to when they travel from one place to another to appear for the final year exams. The OM only lists the protocols colleges and universities are to follow after the students enter inside the campus to give their examinations. It does not consider the risks they would be exposed to before or after that – considering that many students would have to cross borders and cities to appear for their exams in person. The SC should have considered the ground realties that students would be confronted with – many of them have returned to their hometowns and would find it difficult to travel during times as transportation is a risky affair during an ongoing pandemic, thereby prima facie posing a threat to their lives and personal liberties.