[This is a guest post by Utkarsh Roy.]
In January 2019, Parliament enacted the Constitution (103rd Amendment) Act, 2019 (“the Constitutional Amendment”), which amended Articles 15 and 16 by inserting Articles 15(6) and 16(6) into the equality code of the Constitution, and introduced reservation in the spheres of higher education and public employment for the Economically Weaker Sections (“EWS”) on the basis of their ‘financial incapacity.’ Articles 15(6) and 16(6), categorically speak of economically weaker sections of citizens other than the classes mentioned in Articles 15(4), 15(5) and 16(4). Therefore, the category of EWS arguably excludes the economically weak from Scheduled Castes (“SCs”), Scheduled Tribes (“STs”) and Other Backward Castes (‘OBCs’).
Until the Constitutional Amendment was introduced into the Constitution, reservation was restricted to certain social groups who suffer marginalisation on the basis of their ascribed identity. Such social groups comprise of various endogamous units constituting the three categories of OBCs, SCs, and STs on the basis of the social marginalisation and subjugation faced by them on account of their ascribed caste identity. The degree of such social marginalisation or oppression on the basis of caste identity varies across these three categories; however the nature of marginalisation finds its root in the caste identities for all the three categories.
The SCs comprise of those castes who were at the receiving end of the worst form of oppression on the basis of their caste identity and were labelled as ‘untouchables’ on account of them being assigned such tasks that were considered ritually polluted and impure. (Anand Teltumbde, The Persistence of Caste (Zed Books 2010), pg 14). The STs comprise of those indigenous communities (also referred to as ‘Adivasis’) who face oppression due to their isolation or exclusion from ‘mainstream’ society. Sanjukta Das argues that owning to such exclusion, the dominant mainstream society pejoratively categorises them as the ‘primitive other’ or ‘savages’ on the basis of their identity. The administrative category of OBCs encompasses those castes who were identified as ‘Shudras,’ and who were engaged in various marginal occupation assigned to them by the society to serve the upper three varnas higher to them in the caste hierarchy. According to DL Sheth, the OBCs have suffered from varying degree of ritual prohibitions (D.L. Sheth, ‘Changing Terms of Elite Discourse: The Case of Reservation for ‘Other Backward Classes’’in Zoya Hasan (eds), Politics and the State in India (Sage India 2000) pg 222). The Mandal Commission recommended, inter alia, reservation in favour of the OBCs in higher education and public employment on the ground that the OBCs were marginalised and excluded from institutions in the society on the basis of their inferior status in the caste hierarchy (Mandal Commission Report, Vol I, Chap 4, pg. 14). The Supreme Court in Indra Sawhney v Union of India (Indra Sawhney) relied on the observations of Mandal Commission that described how Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them (Indra Sawhney, Paragraph 13) Similar rationale can be discerned regarding the constitutional provision for reservation in favour of women who have been at the receiving end of the oppression on the basis of their gendered identity.
In this essay I intend to establish that reparation towards marginalized identities like Schedule Castes, Schedule Tribes, Other Backward Classes, Women, Trans people etc. (collectively referred to as “Socially Marginalized Identities” or “SMIs”), forms part of the basic structure of the Constitution. I start off by emphasizing on the significant difference between the nature of injustices suffered by the SMIs and the EWS. I go on to argue that underlying principle behind the provisions dealing with reservation within the constitutional framework is essentially that of reparation. Further, I argue that the term ‘reparation’ necessarily involves acknowledgement / apology on the part of the oppressors for the oppression committed by them on the SMIs, coupled with a measure which intends to remedy the injustices of the past, i.e., reservation. Furthermore, I argue that the underlying principle of reparation, including its crucial element of acknowledgement, forms part of the basic structure. Lastly, I argue that the Constitutional Amendment erases the principle of reparation from the Indian Constitution, and therefore violates the basic structure of the Constitution.
Difference between Identity-Based Oppression and Poverty
One has to be mindful that the SMIs and EWS are not similarly situated. The cause and nature of injustice suffered by the two groups are significantly different. Hill Jr. argues that racial and sexist oppression not only involved depravation in terms of tangible goods or denial of rights and opportunities, which can be roughly quantified and “paid back” in kind, but also consisted of psychological injury in the form of humiliation and contemptuous treatment which could not be paid back in the strict sense. Forms of oppression such as casteism, sexism and racism are primarily in the nature of psychological injury to the dignity of the entire social group. Therefore, the damage caused to the SMIs includes psychological damage in addition to material damage, which cannot therefore be compensated through material compensation. As Judith Jarvis Thomson argues in the context of racism and sexism:
“And even those who were not themselves down-graded for being black or female have suffered the consequences of the down-grading of other blacks and women: lack of self-confidence and lack of self-respect.”
Affront to the dignity of the SMIs requires moral repair or acknowledgement on the part of the oppressors along with a remedial measure to ensure the sincerity of the acknowledgement.
Further, the causes behind the injustice suffered by the EWS and SMIs are inherently different. There is a deliberate intention to oppress, exclude and subjugate the SMIs on the part of the oppressors on the basis of their supposed inferior social standing. The intentional nature of marginalization involved in egregious injustices like casteism, racism or sexism, wherein a dominant group consciously oppresses the subordinate group on the basis of its identity, sets it apart from economic injustice, which is result of structural or institutional maldistribution of wealth in the society. Therefore, the injustice suffered by the EWS is in terms of economic deprivation on account of the economic structure which has neglected them and allows the inequitable accumulation of wealth.
The claim of EWS, along with the economically disadvantaged among SMIs, is essentially of distributive justice which seeks redistribution of wealth in the society, while the claim of SMIs, including those who belong to the economically advanced sections among the SMIs, is essentially of moral repair or reparation on the on the part of the oppressors for the affront to their dignity.
Reservation Envisaged as a Distinct Remedy to Address Identity-Based Oppression
To enquire whether reservation was envisaged specifically to remedy the injustice done on the basis of identity, reference can be made to Justice Sawant’s opinion in Indra Sawhney, wherein he observed that:
However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression “weaker sections of the people” in Article 46 should not be mixed up with the expression “backward class of citizens” under Article 16(4).
In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). (emphasis added)” [Paragraph 575]
Justice Sawant further observed:
“If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination (emphasis added) [Paragraph 520].”
The tenor of the foregoing observation makes it clear that reservation is envisaged as a distinct and separate remedy to address the past (and present) injustice suffered by certain social groups on the basis of their caste. Therefore, Justice Sawant opined that the basis of remedial measure has to be caste, if the exclusion or oppression was done on the basis of caste. The foregoing rationale behind reservation can be extrapolated to other marginalised identities like women and trans people, who have been oppressed on the basis of their gender or sexual identity.
Further, Justice Sawant observes that reservation is not meant as a remedy for the economically weak among the dominant sections of the society, as they are already well represented in the sphere of higher education and employment. Therefore, by necessary implication, it can be concluded that reservation in the spheres of higher education and employment is meant to address a specific kind of injustice based on the identity of certain social groups, as opposed to injustice solely in terms of economic or material depravation.
The Underlying Principle behind Articles 15(4), 15(5), 16(4) and 16(4A)
In Indra Sawhney, the respective opinions delivered by Justice Reddy (along with three other Justices), Justice Sawant and Justice Pandian (“the Combined Opinion”) stressed on the past injustices and marginalisation committed to the SMIs on the basis of their caste identity. From the Combined Opinion, one can conclude that there was a consensus with respect to the proposition that the measure of reservation is meant to address the historical injustices suffered by the SMIs. The combined opinion recognised that the aim and purpose of reservation was to restore the imbalance created in the favour of the dominant social groups on account of the concomitant injustice suffered by the SMIs. Therefore, six out of the nine judges in Indra Sawhney were of the opinion that the measure of reservation was meant to remedy the past injustices suffered by certain social groups and to redress the imbalance created on account of such injustices.
In the context of determining the quantum of reservation, Justice Reddy observed that:
True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go, i.e., in a year or two. (emphasis added) [Paragraph 96]
In the above observation, Justice Reddy not only recognised the fact that the Backward classes have suffered historical social injustice but also acknowledged that they continue to being subjected to such injustice even today. Further, the foregoing observation makes it clear that the measure of reservation is meant to redress the imbalance caused due to centuries of injustice. In other words, reservation is meant to undertake reparation.
Subsequently, in M Nagaraj v Union of India (M Nagaraj), the Constitution Bench observed that Article 16(4) reflected the principle of ‘egalitarian equality’ which essentially required the State to undertake affirmative action in favour of disadvantaged section of the society within in the democratic set up. The Constitution Bench in M Nagaraj, made a very crucial observation that:
“Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. (emphasis added)” [Paragraph 71]
The foregoing observation by the Constitution Bench in M. Nagaraj recognised that Article 16(4) is meant to remedy the past historical discrimination suffered by certain social identities who constitute a distinct social class. Therefore, the principle of egalitarian equality reflected through the Article 16(4) is essentially to undertake reparation towards the SMIs in order to remedy the past injustices suffered by them.
Reparations as Part of the Basic Structure
Krishnaswamy argues that in order identify a basic feature, the court looks for ‘features’ of the Constitution reflected through various provision of the Constitution which may be regarded as moral and political principles at the normative core of the Constitution (Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, (Oxford University Press 2009) pg. 146).
In M Nagaraj, the Constitution Bench observed that the Constitution is committed to certain principles, which are manifested through various articles. Therefore, various provisions of the Constitution might be interwoven with a common commitment to certain overarching principle, which are distinguished as essential features (the basic structure) of the Constitution. Such overarching principles which are recognised as essential features are reflected through different provisions that are spread across different parts of the Constitution. [Paragraph 19]
At this stage it is pertinent to refer to the concurring opinion by Justice Pandian in Indra Sawhney, wherein he observed:
“There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment. (emphasis added).” [Paragraph 145]
The foregoing observation by Justice Pandian indicates that a common thread runs through various constitutional provisions spread across different parts of the Constitution. Justice Pandian’s observation that such provisions are meant to “redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes,” strongly suggests that an overarching principle of reparation runs as a common thread through such provisions. Further, according to Justice Pandian, this overarching principle “is not merely a part of the Constitution but also a national commitment.” Therefore, I argue that the above observation made by Justice Pandian indicates that the overarching principle of Reparative Justice which runs through various provisions of the Constitution is an essential feature of the Constitution.
Furthermore, in I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu and Ors, (IR Coelho), Sabharwal CJ made following observation on behalf of the nine-judge Constitution Bench:
India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution. The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case. (emphasis added) [Paragraph 62]
The foregoing observation by Constitution Bench categorically recognizes that the essence of fundamental rights forms part of the basic structure of the Constitution. The concrete provisions are the manifestation of the underlying abstract philosophies or values behind such provisions. The underlying abstract principles or values behind such provisions have to be distinguished from the text of the provisions itself, as it is the former which forms part of the basic structure. The textual provisions can be amended through constitutional amendment, as long as it is not destroying the underlying principle behind those provisions. In case a constitutional amendment alters or infringes the underlying abstract principle behind a textual provision or the essence behind the fundamental rights, it would amount to violation of the basic structure of the Constitution.
Therefore, an amendment of a constitutional provision which is meant to further the abstract value behind such provision would not violate the basic structure, as the amendment would be in consonance with the abstract value which forms part of the basic structure. For instance, in M Nagaraj, the Constitution Bench observed that the identity of the Constitution was not altered upon the insertion of Article 16(4A), through a constitutional amendment. The Constitution Bench observed that Article 16(4A) flows from Article 16(4) indicating that constitutional amendment introducing reservations in promotions was in furtherance of the principle already enshrined in Article 16(4). I argue that the Constitution Bench in M. Nagaraj observed that there was no change to the identity of the Constitution on account of the constitutional amendment because the insertion of Article 16(4A) was in consonance with underlying principle enshrined in the Article 16(4) (mutatis mutandis in Articles 15(4), and 15(5), i.e., principle of reparation towards the SMIs.
Envisaging Reparation as an Eternal Concept
There could conceptual or philosophical problems in envisaging reparation as part of the basic structure. For a principle to form part of the basic structure, it should be of eternal character. On the face of it, reparation might seem to be a process which has an definite endpoint. However, I argue that reparation is an eternal process which requires acknowledgement on the part of the oppressors along with a remedial measure to substantiate that acknowledgement, and the acknowledgement outlives the remedial measure.
As per Boxill, the acknowledgement of the past injustice from the oppressors is a prerequisite under the premise that every person is equal in worth and dignity. The absence of such acknowledgement or admission on the part of the oppressor would indicate that the oppressor has merely treated the oppressed groups in which it deems fit, wherein, the terms of such measure are set by the oppressors itself. In such scenario, Boxill argues, that measure undertaken would not establish equality between the oppressor and the oppressed.
Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressor believes or considers the oppressed group as its equal. In other words, justice demands that the society, and therefore the State acknowledges that it is undertaking remedial measure towards the SMIs in the form of quotas or reservation, precisely because such treatment or measure is required from the State on account of the past injustice suffered by the SMIs. Acknowledgement on part of State, and therefore, the society would reinforce its belief in the equality of the SMIs by admitting that reservation is required precisely because of the malicious and intentional marginalisation faced by the SMIs at the hands of the society and that the measure of reservation seeks to remedy the affront to their dignity.
Therefore, the acknowledgement is one of the two crucial elements of reparation. The acknowledgement would outlive the remedial measure of reservation. Karl Figlio argues that remembering is reparation and that reparation is a never-ending urge. Figlio relies on Habermas, who advocated an endless, ever-incomplete work of ‘critical self-examination’ for Germany in the context of reparation to Jews. (Karl Figlio, Remembering as Reparation, (Palgrave Macmillan) pg. 124). In the context of German reparation to Jews, Habermas espouses critical self-examination of subsequent generations and argues that there is an obligation incumbent upon Germany to keep alive the memory of the suffering of the victims of Holocaust. Habermas suggested that subsequent generations can practice solidarity with victims of Holocaust, only through the “medium of remembrance that is repeatedly renewed,” continually on one’s mind (J. Habermas, S.W. Nicholsen, The New Conservatism: Cultural Criticism and the Historians’ Debate Studies in Contemporary German Social Thought (MIT Press) pg. 28)
Reparation is constituted by two elements – acknowledgement and a measure to substantiate the acknowledgement. In case either of the two is absent, then the act won’t amount to reparation. The two elements of reparation, i.e., acknowledgement and remedial measure complete each other. Acknowledgement is required to ensure that the remedial measure is undertaken precisely to address the past injustices and to uphold the dignity of the SMIs and remedial measure is required to ensure that the acknowledgement is a sincere one. The remedial measure of reservation acts as a concrete limb to the abstract principle of acknowledgement. Though the remedial measure, i.e., reservation might be eventually phased out if certain material conditions were fulfilled, the acknowledgement of the society towards the SMIs would be there for eternity. The remedial measure of reservation is closely entwined with the acknowledgement, as the substance of the acknowledgement is predicated on the undertaking of the remedial measure of reservation.
Reservation as an Acknowledgement Forms a Part of the Basic Structure
I argue that that the remedial measure of reservation under the Indian Constitution itself amounts to an acknowledgement on the part of the State, which is a representative of the society which subjugated the SMIs. The Indian constitution envisages reservation as a distinct remedial measure meant for addressing past injustices suffered by SMIs. The distinct nature of the remedial measure amounts to acknowledgement on the part of the society. Khaitan argues that the strong form of affirmative action like quotas should be set aside only for the social groups who have suffered from egregious historical injustices like slavery, apartheid and casteism, as in such cases the quotas could indicate an admission or acknowledgement of the trauma of these past injustices (Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press 2015) pg. 223). In the context of race-based affirmative action, Bridges argues that it could be the most moral effort that society could make insofar as it reminds society about the racial injury that the racial minorities in the US have suffered. The requirement of acknowledgement also indicates that the measure meant for reparation cannot be subsumed with other claims of justice. It is argued, in the context of Black reparation, that the agenda of black reparation should not be remoulded into a ‘universalistic’ reform meant for all American citizens or redesigned for poor people (including poor white population) per se (C.J. Munford, ‘Reparations: Strategic Considerations for Black Americans’ in Roy L. Brooks (eds), When Sorry Isn’t Enough (New York University Press 1999) 424).
Therefore, in the Indian context, reservation serves the dual purpose of acknowledgement and remedial measure. The acknowledgement and the remedial measure are interwoven with each other. Any alteration with the remedial measure would completely erase the acknowledgement. Hence, the aspect of reservation which signifies acknowledgement, i.e., it being a remedy of distinct nature meant to address specific kind of injustice suffered on the basis of identity, is part of the basic structure.
This argument in no way suggests that the Constitution forecloses the possibility of parliament coming up with an alternate measure of undertaking reparation. From the broadly worded texted of Article 15(4), it is amply clear that Constitution allows the parliament to come up with additional measures as a supplementary to the existing reparative measures, to further the abstract principle of reparation. However, the argument suggests that a measure which has been recognised as a reparative measure cannot be extended to social groups who have not suffered identity-based injustice, because that would be in contravention or violation of the underlying principle of reparation which forms part of the basic structure. For example, even if there are two measures for undertaking reparation, a constitutional amendment which inserts a provision which negates or divests the reparative nature of the measure would be violative of the basic structure. Therefore, reservation which has been recognised as a measure to undertake reparation cannot be altered in a manner wherein it loses its reparative character.
103rd Constitutional Amendment is in Contravention of the Acknowledgement
As argued in the earlier section, the setting aside or earmarking of the strongest form of affirmative action in the form of quotas or reservation in favour of the SMIs, indicates acknowledgement on the part of the State that reservation is meant to address the specific nature of injustice or injury suffered by the SMIs on the basis of their identity. However, such acknowledgement or admission is erased when reservation, which was hitherto earmarked or set aside to specifically address the egregious injustices like casteism and sexism suffered by certain social groups on the basis of their identity, is extended to other groups, who have not been intentionally subjected to such marginalisation and subjugation on the basis of their identity.
Extending the remedy of reservation to the EWS thus amounts to conflation of the significantly different claims of EWS and SMIs. Furthermore, extending reservation to the EWS envisages the space in the sphere of higher education and employment merely as an economic good to be distributed in a distributive paradigm, rather than a means to alter the power relation and social standing in society. I therefore contend that clubbing the EWS and SMIs together for the remedial measure of reservation, conveys that in the eyes of the state, the marginalisation and deprivation faced by SMIs as well as EWS are similar in nature, and therefore it could be addressed through the same remedial measure of quotas and reservation. Further, the extension of reservation or quotas to the EWS downplays the nature of injustice suffered by SMIs, which is in terms of psychological injury to the dignity of the entire social group. Extending reservation to EWS suggests that economic deprivation is the only injustice that is faced by SMIs. Therefore, the remedial measure of reservation, which was envisaged by the Constitution as a remedy to the distinct nature of injustice suffered by the SMIs on the basis of their identity from time immemorial, gets reduced to a measure meant to undertake distributive justice.
Importantly, Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressors believe or consider the oppressed group as their equal. By extending reservation to the EWS, the objective measure of providing reservation to the SMIs is devoid of the subjective attitude of ensuring reparation to them. Therefore, reservation is provided to the SMIs, but on the terms wherein the State can dispense with its acknowledgement and apology for the past injustice. Absence of acknowledgement and apology would mean that the State treated the SMIs the way it deemed fit.
Therefore, the Constitutional Amendment fundamentally changes the nature of the remedial measure by suggesting that the nature of injustice suffered by EWS is similar to that of the SMIs. Reservation ceases to be a measure for reparation once it is extended to those groups who have never been subjected to past injustices on the basis of their identity.
103rd Constitutional Amendment violates the Basic Structure
To enquire whether insertion of Articles 15(6) and 16(6) violates a principle which forms part of the basic structure of the Constitution, it would be pertinent to refer to the following observation by Justice HR Khanna in Indra Nehru Gandhi v Raj Narain (Indra Nehru Gandhi):
I shall for the purpose of this case assume that such a matter can validly be the subject-matter of a Constitutional amendment. The question to be decided is that if the impugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitution, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of the Constitution remains unaffected. The answer to the above question, in my opinion, should be in the negative. What has to be seen in such a matter is whether the amendment contravenes or runs counter to an imperative rule or postulate which is an integral part of the basic structure of the Constitution. If so, it would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases. If an amendment striking at the basic structure of the Constitution is not permissible, it would not acquire validity by being related only to one case. To accede to the argument advanced in support of the validity of the amendment would be tantamount to holding that even though it is not permissible to change the basic structure of the Constitution, whenever the authority concerned deems it proper to make such an amendment, it can do so and circumvent the bar to the making of such an amendment by confining it to one case. What is prohibited cannot become permissible because of its being confined to one matter (emphasis added). [Paragraph 210]
From the foregoing observation it is clear that the standard that has been set to evaluate whether a constitutional amendment violates the basic structure requires that the constitutional amendment should run counter to or in contravention of an underlying abstract principle which forms part of the basic structure. The foregoing observation strengthens my argument in the earlier section, that even if there are more than one recognised measure of reparation within the constitutional framework, a constitutional amendment divesting the reparative nature of even one reparative measure would run counter or in contravention or violation of the principle of reparation which forms part of the basic structure.
Further, in IR Coelho, the Constitution Bench made following observation:
“If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down.” [Paragraph 62]
I argue that the insertion of Articles 15(6) and 16(6) infringes the essence behind Articles 15(4), 15(5), 16(4) and 16(4A), which has been recognised as principle of reparation. Relying on the foregoing observation, I argue that once a measure has been earmarked or recognised as a reparative measure, it cannot be altered in a manner that it ceases to be of reparative character. Any such constitutional amendment which introduces a provision in the constitution to change the reparative character of a recognised reparative measure, would be in contravention or would run counter to the principle of reparation, which forms part of the basic structure. In the present case, the erasure of acknowledgement which is a crucial and indispensable element of the reparation, runs counter to, or contravenes, the principle of reparation within the constitutional framework.
For these reasons, the 103rd Amendment it is unconstitutional on the ground that it violates the basic structure of the Constitution.