(This is a guest post by Nivedhitha K.).
The 103rd Constitutional amendment enables 10% reservation for the ‘economically weak’ of the forward caste. Prior to the amendment, the Indian Constitution only provided reservation for the ‘backward class’, where the determination of backward class was based on ‘caste’. Therefore, until recently, reservation has always been ‘caste-based’. The 103rd amendment revamps the structure of the equality code by enabling reservation solely based on ‘economic capacity’.
A Constitutional amendment can be struck down only if the basic structure of the Indian Constitution- as propounded in the case of Kesavananda Bharati v. State of Kerala – is ‘damaged’. In this essay, I will analyse a series of cases that deal with the basic structure doctrine, and develop a working test to challenge Constitutional amendments. The 103rd Constitutional amendment will then be tested upon the evolved working test.
Concepts, Facets, and Conceptions
An analysis of a series of cases involving the basic structure doctrine, elucidates that the basic structure operates at three levels of abstraction: concept, facet, and conception. Consider the 99th Constitutional amendment, which substituted the NJAC in place of the collegium for the appointment of judges, and was challenged in the NJAC case. The five-judge bench struck down the amendment on the ground that ‘primacy of the judiciary’ in appointment of judges is an integral part of ‘independence of the judiciary’, which – in turn – is an integral part of the basic feature of democracy. Therefore a question of whether the ‘independence of the judiciary’ is damaged, was answered with reference to ‘primacy of the judiciary’. A similar three-level abstraction was made in the case of PUCL as well. Though the case did not involve the challenge of a Constitutional amendment, the observations in the case would be useful for our analysis. In the PUCL case, provisions of the Election Rules, 1961 that allowed a person who exercised NOTA to be identified, wre challenged on the ground of violation of secrecy of ballots. The bench while holding that the NOTA button is to be set up in the EVM, observed that secrecy of ballots was ‘fundamental’ to a free and fair election, which in turn is a basic feature of the Indian Constitution.
Therefore, three levels of abstraction could be identified through the PUCL case and the NJAC case. In the NJAC case, the abstraction is in the form of democracy –> independence of the judiciary –> primacy of the judiciary in judicial appointments. In the PUCL case, the abstraction is in the form of democracy –> free and fair elections –> secrecy of ballot. All the three levels of abstraction are a part of the basic structure. Through the remaining part of the essay, the three levels of abstraction will be termed as concept (‘democracy’), facet (‘independence of the judiciary’ and ‘free and fair elections’), and conception (‘primacy of the judiciary’ and ‘secrecy of ballots’).
A concept is a basic principle that governs the Constitution such as democracy, rule of law, secularism, federalism, and equality. They are broad principles that are usually identified with reference to preamble of the Indian Constitution. A facet is a particular aspect of the concept, which is independent of the structure of the Constitution. It is a means to the end of the ‘concept’, without which the concept would be nugatory. On the other hand, a conception is a subset of the facet, and a specific understanding of the facet that is Constitution-specific. A conception could exist in different forms, of which, a few might form a part of the basic structure and few might not. For instance, in the case of RC Poudyal, an amendment was challenged on the ground of violation of the one person- one vote conception. The court observed that alteration of the one person- one vote conception would not damage the basic feature of democracy since different conceptions of democracy could exist. However, certain conceptions might be fundamental to the concept within the constitutional framework, an alteration of which will damage the concept (which is a basic feature). This position was elucidated in the PUCL case, wherein it was observed that the conception of ‘secrecy of votes’ is fundamental in a ‘constituency-based election’, and not in a ‘proportional representation system’. In Poudyal, the conception was not a basic feature, while in PUCL the conception was a basic feature. Therefore, conceptions may or may not be fundamental to the concept. If it is the former- it is a basic feature, else it is not.
Crucially, how are facets and conceptions that are basic features identified? Though all basic features are identified through judicial recognition, the degree of intervention (for identification) differs. Facets can be identified through (what I define as) the “manifestation and interpretation” approach, and the conceptions by the “interpretation approach” alone. According to the manifestation approach, the facet is ‘per se’ a clear understanding of the concept. For instance, the identification of free and fair election as an integral part of democracy, did not involve a lot of jurisprudential debate. However, certain facets are either in their nascent stage of jurisprudential development, or are subject to conflicting views. For instance, the jurisprudence surrounding equality were undergoing evolution, until MN Thomas, where both formal and substantive equality were recognised as facets of equality. In such cases, it would not be appropriate to identify facets (that are basic features) through the manifestation approach; instead the interpretation approach is to be used. Through the interpretation approach, a two prong test is to be undertaken. Firstly, judicial pronouncements should have held that they are facets of the concept, and secondly, those facets should have been recognised as basic features, expressly or through necessary implication.
On the other hand, a conception is identified solely through judicial interpretation, because these are Constitution specific. In order to determine as to whether a conception is a basic feature, an in-depth analysis is to be undertaken. The judiciary would decide with regard to the structure of the Constitution, provisions and the silences of the Constitution. Let me explain this through an example. Federalism is a basic feature of the Constitution; the autonomy – in principle – of the constituent units is a facet of federalism (‘per se’ aspect of federalism). Conceptions of federalism are numerous. One conception is that the residuary power is to belong to the centre, while another conception is that it shall belong to the state; the centre could hold consultations with the constituent units (state), before implementing an international obligation, or might not hold consultations. Each of these conceptions are Constitution-specific. In India, the conception of the centre holding the residuary power is a part of the concept of Indian federalism, which might not be for the US. Similarly, consultations with the state on state subjects, that the international obligation covers, maybe a conception that is integral in Australia, but not in India. Therefore, unlike identification of facets, a Constitution-specific approach will have to be undertaken to identify the conceptions. As stated above, a conception may or may not be a basic feature. A conception (after identification through a Constitution-specific approach) will be a basic feature, only if it is integral to the functioning of the facet. In order to identify as to whether it is integral to a facet, judicial pronouncements and structure of the Constitution shall be used as an aid. So, if conceptions violate the facet, they will be unconstitutional. If they are not violative of the facet, they might or might not be basic features- depending on how integral they are to the facet.
Judicial pronouncements to identify a Basic Feature
In order to identify conceptions and facets that are basic features through judicial pronouncements, it is first to be established that judicial pronouncements could be used to identify basic features. Judicial pronouncements have been used to identify basic features, and to test the violation of basic structure in the past. Y V Chandrachud J, in the election case, addressed the question of whether excluding the election of the prime minister and the speaker from the ambit of judicial review would violate the basic feature of equality. To conclude that it violated the basic structure, he tested the provision on the intelligible differentia classification test propounded in Anwar Ali Sarkar. This approach was followed in I. R Coelho as well. Y K Sabharwal CJ while delivering the decision observed, “The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of law” (paragraph 42). He analysed the transformation undergone by Article 21 from AK Gopalan to Maneka Gandhi, and held that broad interpretations must be used to identify any abridgment of the basic structure.
Finally, in the NJAC case, a submission was made that a basic feature could be identified only through plain reading of the provisions of the Constitution. Khehar CJ disagreed with the submission and observed that the basic feature is to be identified by reading original plain provisions and the interpretation placed on it by the courts. He observed, “In the above view of matter, it would neither be legal nor just to persist on an understanding of the provision(s) concerned merely on the plain reading thereof as was suggested on behalf of the respondents. Even on a plain reading of Article 141, we are obligated to read the provisions of the Constitution in the manner they have been interpreted by this court” (paragraph 299). The second judges and the third judges’ case had read ‘consultation’ with the judiciary in appointment of judges to mean ‘concurrence’. This conception – i.e., that judicial independence required judicial primacy in appointments – that was established through interpretation was regarded as a part of the basic structure in the NJAC judgment.
Facets of Equality are Basic Features
Having established that judicial interpretations could be used to determine whether a facet or a conception is a basic feature, I will now establish that egalitarian equality and formal equality are facets of equality, and are basic features of the Constitution. Before addressing this question, a preliminary question of whether fundamental rights can be a part of the basic structure is to be answered. The general perception is that Kesavananda Bharati held fundamental rights to not be a part of the basic structure. However, in IR Coelho, Khanna J’s judgment in Kesavananda Bharati was construed to hold that fundamental rights are a part of the basic structure, and it was the right to property that was held not to be a basic feature. Hence the majority in the Kesavananda Bharati case – as interpreted in Coelho – did regard fundamental rights as a part of the basic structure.
Equality has been recognised as a basic feature in quite a few cases. In Ashoka Kumar Thakur, Balakrishnan CJ observed, ‘the principle of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness’ (paragraph 119). Similarly, in the case of M. Nagaraj, it was held that ‘equality is the essence of democracy and, accordingly a basic structure of the Constitution’ (Paragraph 27). Likewise, a portion of Article 329A was struck down for its violation of the basic feature of equality in the election case by Y V Chandrachud J. Therefore, equality (which is a concept) is a part of the basic structure.
I now aim at establishing that substantive equality and formal equality are facets of the concept of equality, and are basic features of the Constitution. A facet, as explained above, is a means to the end of concept, which is Constitution independent. In the case of MN Thomas, substantive equality and formal equality were held to be facets of equality, after a decade of jurisprudential arguments surrounding the subject. But the facets were not ‘clear manifestations’ of equality, which is clear from the fact that it was evolved after a dozen cases had debated on the issue. Therefore, in order to establish that the facets are basic features, the interpretation approach is to be used. The two-pronged test is applied. Firstly, judicial interpretation must have regarded equality and substantive equality as facets of equality. This test is fulfilled, with reference to MN Thomas. The second test is that the facets should have been held to be a basic feature, expressly or through necessary implication. The essence test, and the judgment in Nagaraj and Indra Sawhney will be used to identify that facets of substantive and formal equality are a part of the basic structure by necessary implication.
The ‘essence test’ was propounded in IR Coelho and accepted in NJAC. It was observed in IR Coelho, “It cannot be held that the essence of the principle behind Article 14 is not a part of the basic structure. In fact, the essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense” (Paragraph 109). The essence of equality as provided in the Constitution is its ability to provide for both substantive and formal equality. In Nagaraj, a question arose as to whether providing for consequential seniority in reservations pertaining promotions would violate the basic structure. The amendment was tested on whether Art 16(1) was violated. The bench held that it cannot be said that the insertion of the concept of ‘consequential seniority’ abrogated the structure of Art 16(1). Further, in the case of Indra Sawhney (2000), it was held that if the creamy layer is not excluded from the ambit of reservation, then it would amount to treating unequal’s equally, violating Art 14 and 16(1) – the basic features of the Constitution (paragraph 65 and 27). Though it was not expressly observed that Art 16(1) which provides for substantive equality is a basic feature of the Constitution, the same could be construed through necessary implication because the amendments were tested on Art 16(1) for violation of the basic structure doctrine. Formal equality has been expressly recognised as a basic feature in Indra Sawhney as it was held that non exclusion of the creamy layer would amount to treating unequals equally(which is a principle guiding formal equality).
Therefore, through the above observations, it is proved that substantive and formal equality are facets of equality, and are basic features of the Constitution.
The Alteration Test
It has been argued by Gautam Bhatia, that only if the entire equality code is abrogated would there be a violation of the basic structure doctrine, and the parliament is qualified to prescribe different forms of equality. Bhatia’s argument is based on the Nagaraj judgment, wherein the constitutional validity of Art 16(4A) and Art 16(4 B) was in question. In Nagaraj, the revamp of the equality code was upheld because it was regarded that none of the conceptions that were basic features were altered. It was observed that the substitution of consequential seniority in place of the catch up rule was not violative of the basic feature of equality, because the catch up rule was not a constitutional requirement, but was judicially evolved through ‘service jurisprudence’. However, other judicially evolved conceptions such as the 50% ceiling limit, the concept of creamy layer, compelling reason of backwardness, inadequacy of representation, and overall administrative efficiency were regarded as constitutional requirements. Therefore, Nagaraj was an attestation that alteration of a conception that is a basic feature would violate the basic structure of the constitution- it was just that none of the conceptions that were altered in Nagaraj were regarded as basic features.
It may also be argued that Balakrishnan CJ in Ashok Kumar Thakur observed, “the principle of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the directive principles of state policies” (Paragraph 119). This objection would not hold good for two reasons. Firstly, in the instant case, the facet of equality- as in this case substantive equality- itself is a basic feature. Secondly, the observation was made on the premise that ‘abrogation’ of the basic structure and not ‘alteration’ is the test to determine the violation of the basic structure.
However, Madan Lokur J, in the NJAC judgment, correctly clarified that the Kesavananda Bharati case did not propound the abrogation test, but rather propounded the ‘alteration test’. He observed, “the Bench that decided Kesavananda Bharati were of the opinion that it is enough to declare a constitutional amendment as violating the basic structure if it alters the basic structure. Undoubtedly, some of the learned judges, have used very strong words in the course of their judgment, etc. But when it came to stating what is the law actually laid down, the majority decided that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution” (Paragraph 797). The reading down of the NJAC amendment was primarily because of the substitution of alteration test in place of the abrogation test.
Consolidating my arguments above, basic structure exists in three levels of abstraction – concept, facet, and conception. A facet is either identified through the manifestation approach or the interpretation approach. If the facet cannot be identified manifestly, because the jurisprudence surrounding it is subject to differing views, then the interpretation approach is to be used. Through the interpretation approach, it is not sufficient if it is proved that they are facets of the concept, but it must also be proved that the facets are basic features. Using this approach, it was established that both formal and substantive equality are facets of equality, and are basic features. I then explained the possibility (and necessity) of identifying basic features through principles established by judicial interpretations; this argument helped in establishing that the facet of substantive equality is a basic feature. The golden triangle of Articles’ 14, 19 and 21, which invokes the test of arbitrariness, has also received the stamp of a basic feature in the cases of M. Nagaraj and Coelho. In Nagaraj, it was held that the test of ‘reasonableness’ is a basic feature. Therefore, the 103rd constitutional amendment would now be tested for violation of the basic feature of ‘reasonableness’ and ‘formal and substantive equality’.
The test of arbitrariness and Formal Equality
Three impacts arise on the inclusion of Articles’ 15(6) and 16(6), which strike at arbitrariness and substantive equality. Firstly, through the amendment, ‘economically weaker section’ of the forward castes and the members of the backward class are treated at par with each other by providing them with reservation. A person belonging to the backward class under Article 15(4) is disadvantaged on three parameters- social, economic and educational. On the other hand, the class introduced under Article 15(6) would only be disadvantaged economically.
Secondly, explanation to Article 15(6) states that the ‘economically weaker section’ shall be notified by virtue of ‘family income’. If a threshold limit is prescribed to determine the family income, then a person who falls below the poverty line and a person who falls below the prescribed threshold but above the poverty line would be treated alike.
Thirdly, Article 16(6) provides for reservation in jobs for the economically weaker section without any requirement of proving the ‘adequacy’ of representation, while on the other hand Article 16(4) states that a person belonging to backward class, to be eligible for reservation, has to prove that his class is not adequately represented. Therefore, for a person to be eligible for reservation under Art 16(4), he will have an extra obstacle to surpass, unlike the reservation provided under Art 16(6).
Any positive steps that are taken to provide for egalitarian equality must be guided by the principle underlying formal equality- which is to treat equals equally, and unequal’s unequally. Through the first two effects, two unequally placed classes are treated equally, violating the basic structure of formal equality. All the three effects would fail the test of arbitrariness that runs through the golden triangle as well.
Violation of Substantive Equality
My next argument against the constitutionality of the 103rd amendment is that it violates the basic feature of substantive equality. Let us now go back to the three levels of abstraction of basic structure- concept, facet and conception. Art 16(4) and 15(4), which permit reservation in educational institutions and jobs on the basis of caste are conceptions of substantive equality since it is one of the forms of achieving substantive equality under the Indian Constitution. Without going into the question of whether the conception of ‘reservation solely on the basis of caste’ is a basic feature, we will analyse as to whether reservation solely based on economic criteria (which is a conception of equality (and substantive equality)), is a basic feature. Recall the first section, wherein I explained that certain conceptions are basic features and a few are not. To identify if they are basic features, judicial pronouncements shall be taken into consideration. Reference is made to the nine-judge bench decision in Indra Sawhney for this purpose. The bench made two observations on using economic determinants for the purpose of reservation. Firstly, economic criteria cannot be solely used to determine ‘backward classes’ under Art 16(4). Secondly, reservation solely based on economic criteria will not be permitted under Art 16(1). The first observation would not be of support to our case since the observation was made with regard to a specific class- the ‘backward class’- which cannot be imported to a different class that has been created (the economically weak class). However, the second observation would support our case. The observation surely restricts executive and legislative actions to provide reservation purely based on economic criteria. But my contention is that the conception of ‘prohibiting reservation solely on economic criteria’ is a basic feature. This conclusion is arrived at on basis of the interpretation approach with the aid of MN Thomas.
The Supreme Court in MN Thomas held that Art 16(4) is not an exception to Art 16(1), but is one of the methods for achieving equality under Art 16(1). Art 16(1) prescribes substantive equality, wherein positive actions are to be taken to establish factual equality. Therefore, 16(1) prescribes the facet of equality – substantive equality, and Article(s) 16(4) and (the impugned) 16 (6) are conceptions of substantive equality. Conception of substantive equality can only exist to the extent of which is permissible under Art 16(1) (the facet) since Art 16(1) is an all-encompassing provision- with regard to reservation in jobs. Any observation on Art 16(1), would hence be applicable to the different conceptions of reservation. Therefore, if reservation based on economic capacity cannot be brought under Art 16(1), it cannot be included through 16(6).A conception that alters the facet (substantive equality) which is basic feature, violates the basic structure doctrine. Therefore, by reading Indra Sawhney and MN Thomas together, a conception that reservation shall not be solely based on economic criteria is established. Since the 103rd amendment alters this conception and it is to be struck down.
Hence, the 103rd amendment is unconstitutional, for it alters the facets of formal equality and substantive equality, and violates the test of arbitrariness.