Tag Archives: reservations

The Supreme Court Upholds Reservations in Promotions for Disabled Persons

In an interesting judgment handed down at the end of last month, a two-judge bench of the Supreme Court considered the question of reservations in promotions for disabled persons.

The Prasar Bharati Corporation (a State employer) has four classes of posts – A, B, C, and D. These posts are filled up in three ways – through direct recruitment, promotion, and partly direct recruitment and partly promotion. Now, under Section 33 of the 1995 Persons With Disability Act, the Government is required to provide at least three percent reservation in “Identified Posts” for persons with disabilities. In pursuance of this, Prasar Bharati issued two office Memoranda. Certain posts in each of the four classes were selected to be the “Identified Posts”; however, while for Classes C and D, the reserved category posts could be filled up through any of the three means (promotion, recruitment, and partial promotion/recruitment), under Classes A and B, reserved posts could be filled only through recruitment. In other words, the Memoranda denied reservations in promotions to disabled employees working in Class A and Class B posts.

The legality of this denial was challenged. It was argued that since a number of posts in Class A and B were filled through promotions, effectively, disabled persons were being denied equality of opportunity.

The State’s response was this: in Indra Sawheny v Union of Indiathe Supreme Court had held that reservations in promotion were impermissible under Article 16(4). Subsequently, To get around this, Parliament then amended Article 16(4) by inserting 16(4A), which specifically authorised reservations in promotions for certain Scheduled Castes and Scheduled Tribes. 16(4A), therefore, excepted only SC/STs from Indira Sawhney’s rule against reservations in promotions. That rule would continue to apply to all other classes of employees, including persons with disabilities.

The basic premise of the State’s argument, therefore, was that the authority for reservations was contained within Article 16(4) of the Constitution. If that was the case, then Indra Sawhney’s interpretation of 16(4) – that it did not allow for reservations in promotions – would hold the field, and prevent the two-judge bench from reaching a different conclusion.

The Court rejected the argument on the basis that Article 16(4) was not the authority for reservations under the Constitution. It did so by going over the history of affirmative action jurisprudence: In its earlier years, the Court had held that Article 16(4) is an exception to Article 16(1)’s guarantee of equality of opportunity. In other words, the default position is a formal equality of opportunity, and Article 16(4) specifically departs from that by permitting the State to make reservations in aid of backward classes. However, starting with Justice Subba Rao’s dissenting opinion in T. Devaadan, through N.M. Thomas, and finally in Indira Sawhney, the position changed, with the Court now taking the view that Article 16(4) was an instance of, or an emphatic expression of, Article 16(1). That is, Article 16(1) involved a commitment to substantive equality (or, in the words of Justice Mathew, proportional equality), and Article 16(4) illustrated one specific way in which that substantive equality could be achieved.

The corollary of this is that Article 16(1) not only permits, but actively contemplates, reservations. So far (to my knowledge), the Court has been circumspect about this conclusion. In the disability judgment, however, Justice Chelameswar takes the logic to its explicit conclusion. In paragraph 21, he notes that:

“Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1).”

He then arrives at the inescapable conclusion that:

Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”

This judgment is a good example of how the seemingly abstract shift in the Court’s jurisprudence from “exception” to “facet”, starting with Justice Subba Rao’s radical dissent in Devadasan, to Justices Mathew and Krishna Iyer’s perceptive exploration in N.M. Thomas, and finally the culmination in Indra Sawhney, has a very tangible, real-life impact. The exception-facet shift changes the locus of reservations from 16(4) to 16(1), and allows the State to escape the straitjacket of “backward classes“, and the accompanying judicial restrictions that have crystallised over the years. This is the practical result of the transformation of the concept of equality.

That said, there are certain parts of the judgment that are slightly confusing. In paragraph 18, Justice Chelameswar observes that “the principle is that the State shall not discriminate (which normally includes preference) on the basis of any one of the factors mentioned in Article 16(1)”; then, in paragraph 21: “however, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion etc. mentioned in Article 16(1) as the basis.”

These factors, however, are not found in Article 16(1), which simply guarantees equality of opportunity in matters of employment under the State. They are found in 16(2), which states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State…” Presumably, Justice Chelameswar meant Article 16(2). However, once it is established that the equality principle animating Article 16(1) (and therefore, by extension, Article 16(2)) is the principle of substantive equality, it is not clear to me why Article 16(2) prohibits the reservation on the basis of its stipulated markers. Surely if reservations flow from a substantive vision of equality itself (as set out in Article 16(1)), the phrase “discriminated against” in Article 16(2) is also meant to be interpreted in that substantive manner, and therefore, reservations for subordinated religions, castes (or women, for that matter) are permitted under Articles 16(1) and 16(2)?

Be that as it may, the Supreme Court’s judgment is clear, sharp, and lucid on the legal issue, and demonstrates how substantive equality operates in doctrine and practice. It will be interesting to see whether and to what extent future reservation judgments follow this model.

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Guest Post – Article 16 and the Concept of a “Power plus Duty” – II

(In Part II of this series, Karan Lahiri continues his argument about the interpretation of Article 16 of the Constitution)

In the last post, I introduced the concept of “power coupled with duty”. In this part, I talk about a batch of writ petitions pending before the Supreme Court, emerging from the State of U.P. (the lead petition being W.P. © 273/2015 – Sewa Lal & Ors. v State of UP), where the issue of “power coupled with duty” is likely to be looked at once again. This second blog post gives some background on how these petitions came to be filed, because the factual context actually demonstrates why reading Article 16 as a hybrid provision, containing both a power and a duty, is the most just and equitable solution. At the end of this part, I look at how the current reading of Article 16 creates an asymmetry problem, and I then provide a brief breakdown of what I believe to be the correct reading of Article 16 as a hybrid power-plus-duty provision.

To place this in context, it may be remembered that in Indra Sawhney, it was held that Article 16(4), as it then stood, was not wide enough to bring within its fold reservation in matters of promotion. However, the Court declared that this would not affect promotions that had already been made and, in fact, granted the additional protection that where reservations have already been provided for in Central or State Services, the same position may continue for a further period of five years. Thereafter, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, which did provide for reservations in promotions. To recapitulate, this provision presently reads:

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

It was after this that the Supreme Court’s judgment in M. Nagaraj was rendered, in which the Court, while upholding the constitutional validity of the amendment, also set out certain conditions precedent for the State to implement ameliorative measures under Articles 16(4A), as also 16(4B) (which deals with carrying forward of vacancies reserved for backward classes/SCs/STs). It was observed –

“…There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on the facts of each case… Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.

However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335…” [Emphasis supplied]

 

Therefore, M. Nagaraj laid down three requirements: –

  1. General efficiency of the service must not be compromised. This is traceable to Article 335 of the Constitution.
  2. The State must come to the conclusion that the groups in question are not adequately represented in the service, based on quantifiable data. This flows from Article 16(4A) itself.
  3. The State, based on quantifiable data, must come to the conclusion that the class benefitting from the ameliorative measure is “backward”.

While this is a topic to which an entirely separate blog post can be devoted, I wish to point out at this juncture that this third requirement does not flow from the text of Article 16(4A), and this constitutes a major error in M. Nagaraj. We need to remember that Nagaraj was dealing with Article 16(4A), which speaks of “Scheduled Castes and Scheduled Tribes”, and not “backward classes”. Unlike reservations under Article 16(4), which categorically mentions ‘backward class’ (the relevant part of which reads “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens), the State did not have to undertake a separate exercise to determine “backwardness” for the purposes of Article 16(4A), because Article 16(4A) allowed for reservation in promotions only for SCs/STs (Nothing in this article shall prevent the State from making any provision… in favour of the Scheduled Castes and the Scheduled Tribes). As per both N.M. Thomas and Indra Sawhney, SCs/STs are presumed to be backward classes and, in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, they have correctly been identified as “not merely backward but the backwardmost.”

 This error in Nagaraj was compounded in U.P. Power Corporation Ltd. v. Rajesh Kumar & Ors., (2012) 7 SCC 1. In this case, the Court was examining the constitutionality of Section 3(7) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and Rule 8-A of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007. Section 3(7) preserved pre-existing Government Orders in U.P. that provided for reservation in promotion. Rule 8-A provided for consequential seniority.

As it was found that no quantifiable data had been collected by the State of U.P. for effectuating reservation in promotion and making the rule of consequential seniority applicable, the Court held: –

“86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.

 … In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.” [Emphasis supplied]

The result of this judgment was, essentially, that all SC/ST candidates in the State services in U.P. would be subjected to reversion, i.e. they would be demoted to the posts they held as on 15.11.1997 (when the five year period of protection provided by Indra Sawhney ended), as the provisions on the basis of which they had been promoted had been effectively struck down with retrospective effect (reaching all the way back to 1997).

The nature of the “exercise” contemplated is set out in Paragraph 81, where Justice Misra summarized the ratio of M. Nagaraj: –

“(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons—“backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.[Emphasis supplied]

There are two serious errors in this judgment. The first is a doctrinal error, which has already been pointed out, namely that no separate exercise to determine “backwardness” is required for SCs/STs, as the backwardness is presumed in the case of Schedule Castes and Scheduled Tribes, as per previous judgments of the Court.

The second error is based on equity, and is useful for understanding why Article 16 should be treated as a hybrid containing both a power and a duty. If, indeed, quantifiable data is to be collected for applying Articles 16(4A) and 16(4B), then, surely, even if the Court’s ruling is not prospectively applied (to protect those promoted prior in time due to the State’s errors), quantifiable data demonstrating that SCs/STs are adequately represented in various echelons of the State services would be a prerequisite for reversion. Assuming that SCs/STs are overrepresented in the higher echelons of the State services because of the State’s failure to collect data, the resultant reversion, in the absence of data, would probably lead to a situation where SCs/STs are underrepresented in the higher posts. The Court, however, failed to clarify this and, instead, in Paragraph 87, only stated that those promotions protected by the Indra Sawhney judgment would remain undisturbed.

Inevitably, contempt petitions came to be filed, as the Govt. of U.P. failed to either seek clarifications of the Supreme Court’s judgment, or take steps to collect “quantifiable data”. On 05.07.2013, the Supreme Court issued notice in the lead petition [Contempt Petition (C) No. 214/2013]. Instead of working to collect the data, the Govt. of U.P. instead took hasty steps to revert all those in the State services to the posts they held as on 15.11.1997. As recorded in the Court’s order of 13.10.2015 in Contempt Petition (C) No. 214/2013, 15,226 persons have been reverted as a result, all without the State having done anything to compile the data.

In this background, a number of SC/ST personnel, who have been reverted, have filed Writ Petitions before the Supreme Court, and some of these petition contain a positive averment to the effect that there is a “power coupled with a duty” in Article 16 to level the playing field.

Let us now consider the arguments. I contend that the problem with the way Article 16 [particularly 16(4), (4A) and (4B)] is read currently is that it is essentially asymmetrical. For ameliorative measures under these provisions, quantifiable data on backwardness and inadequacy of representation is a prerequisite, contributing to the formation of an opinion by the State. On the other hand, for reversion, no such data needs to be collected, and no opinion needs to be formed. Similarly, the current law on Article 16 allows the State to completely ignore the question of whether backward classes, SCs and STs are adequately represented in public services, by simply omitting to collect data, which is required for the formation of an “opinion” under Article 16(4), (4A) and (4B). Therefore, the State can essentially omit the entire process of forming an “opinion”, by refusing to collect the necessary data. There is a hurdle created to pull up backward groups, but none for pulling them down, or for ignoring them entirely. This, I believe, is inconsistent with the equality code of our Constitution, and Article 16 itself contains no textual basis for such asymmetry. It is this asymmetry problem that can be remedied if the Supreme Court recognizes the fact that Article 16 contains within it an enabling power coupled with a positive duty.

While I will elaborate on this in later posts, this is how I conceive of the hybrid powers and duties contained in Article 16: –

  1. There is a positive duty on the State to periodically collect the data required for the formation of an opinion under Articles 16(4), 16(4A) and 16(4B).
  2. Once the data is collected, it is the duty of the State to apply its mind on backwardness, adequacy of representation and efficiency (i.e. the Nagaraj troika).
  3. In applying its mind, the State has discretion in the line-drawing exercise involved in deciding which group is backward, what degree of representation is adequate, and what is the optimum balance in the interest of efficiency.
  4. Based on the above, the State has the discretion to decide if any ameliorative measures are required. As discussed in Indra Sawhney, this need not necessarily be through reservation (or reservation in promotion), but through lesser concessions as well. Therefore, the State’s discretion would also extend to deciding the nature of ameliorative measure.

Therefore, I argue for a reading of Article 16 where the State has discretion in deciding whether ameliorative measure are required for backward classes/SCs/STs, and the extent and nature of of those measures, but, prior to that, the State would bear the positive responsibility of collecting data (as per Nagaraj) and then forming an “opinion”, whatever that opinion may be. In other words, the choice that is eliminated is complete inaction on the part of the State to apply its mind to the issue of adequacy of representation of backward groups in the State services, whether that inaction is a symptom of policy paralysis or political expediency.

(The author is a Supreme Court advocate)

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Guest Post: Does Article 16 Impose a “Power Coupled with a Duty” upon the State? – I

(In an upcoming series of guest posts, Karan Lahiri argues that, properly interpreted, Article 16 of the Constitution not only permits, but actually casts an affirmative duty upon the State to ensure the adequate representation of backward classes of citizens in public employment.)

As this blog already contains an excellent analysis on the topic of reservation, in the ten-part series titled “Reservation, Equality and the Constitution” (in which I would particularly encourage the reader to look at Parts III, IV, V and VII), I think I can skip any preliminaries on the contours of Article 16, and jump right to the question at hand – Does Article 16 of the Constitution of India confer on the State a power coupled with a duty to ensure that backward classes of citizens are adequately represented in public services? Further, is there a similar power coupled with a duty to provide for reservations in matters of promotion for those belonging to Scheduled Castes and Scheduled Tribes which are not adequately represented in the public services under the State?

In “Reservations, Equality and the Constitution – VI: The Middle Way”, it was correctly mentioned that, in Ajit Singh (II), the Supreme Court of India concluded that “Arts. 16(4) and 16(4A) are enabling provisions, and do not confer fundamental rights” and, further, that “the Court also rejected the argument that these Articles conferred a power coupled with a duty, overruling the cases of Jagannathan and Kuldeep Singh.”

What I will attempt to argue, in a series of posts, is outlined below: –

  1. I will first explain the concept of “power coupled with duty” (which has its roots in English administrative law principles).
  2. Based on a set of cases pending before the Supreme Court at the moment, I will attempt to explain why answering the questions posed in the first paragraph in the affirmative leads to the most just and equitable solution, in keeping with the principle of equality as it exists in the Constitution of India.
  3. Finally, I will demonstrate why Ajit Singh (II) is incorrectly decided, and how it conflated the issue of “power coupled with duty” with the issue of whether there is a fundamental right to reservation. In this part, I will also try to demonstrate that reading Article 16 as containing a power coupled with a duty is not only the most just and equitable solution to the interpretive issue at hand, but is also the most consistent with the other strands of precedent that exist regarding the interpretation of Article 16.

(At this point, it is important to clarify that I am NOT arguing that the State has a positive duty to specifically provide for reservations. The scheme of Article 16 (which I believe to be the proper interpretation), in respect of where the State’s duty ends and its discretion begins, will be set out in subsequent posts..)

Degrees of Discretion – Understanding the concept of “power coupled with duty”

 To understand the interpretive question posed in the first paragraph of this post, we must look at the scheme of Article 16 once again: –

“16. Equality of opportunity in matters of public employment.—

(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

….”

Both Article 16(4) and 16(4A) are framed as – Nothing in this article shall prevent the State from making any provision for [X], if in the opinion of the State, [Y] exists. This is, of course, a broad approximation, made only to simplify the language of the provision for the purpose of interpretation. The interpretive issue is whether the framing of these provisions, which appear to be enabling or permissive, can ever be read as conferring not merely a discretionary power but a concomitant duty on the State. In this first part, I will not be looking at the interpretation of Article 16 itself. Instead, I will try to explain the concept of “power coupled with duty”, and explain how this hybridity is often located in provisions containing permissive language, like the language contained in Article 16(4) and (4A).

One of the best expositions on the subject of discretion is contained in “De Smith’s Judicial Review”. On the subject of discretionary power, De Smith states: –

“The concept of discretion in its legal context implies power to make a choice between alternative courses of action or inaction. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no unique legal answer to a problem. There may, however, be a number of answers that are wrong in law. And even in cases where the power is discretionary, circumstances can exist which mean the discretion can only be exercised in one way. There are degrees of discretion, varying the scope for manoeuvre afforded to the decision maker.[Emphasis supplied]

 What flows from this is that even though discretion may be conferred on a State authority, the law may limit the choices that may be made in the exercise of that discretion.

However, when a provision is couched in permissive language, can it be read in a manner that imposes a duty? More specifically, can permissive language, at the very least, suggest that while various courses of action are open to a particular State authority to remedy a particular problem, the State authority can never ignore the problem itself and refrain from at least applying itself to the problem and exercising its discretion? The position in English law, which we have adopted, is summarized in De Smith’s Judicial Review as under: –

“Sometimes, the question before a court is whether words which apparently confer a discretion (words such as “may”, or “it shall be lawful if”) are instead to be interpreted as imposing a duty. The word “may” has over the years, primarily been construed as permissive, not imperative. However, exceptionally, it was construed as imposing a duty to act, and even a duty to act in one particular manner.”

Interestingly, one of the authorities cited in De Smith’s treatise is Julius v. Bishop of Oxford, (1880) 5 App. Cas. 214, which the Supreme Court of India has repeatedly relied on for the proposition that permissive language may often imply a duty to act. The most famous of these, perhaps, is Ambica Quarry Works v. State of Gujarat, (1987) SCC 213, where Justice Sabyasachi Mukharji observed: –

“Often when a public authority is vested with power, the expression “may” has been construed as “shall” because power if the conditions for the exercise are fulfilled is coupled with duty… “May” is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. As early as 1880 the Privy Council in Julius v. Lord Bishop of Oxford explained the position. Earl Cairns, Lord Chancellor speaking for the judicial committee observed dealing with the expression “it shall be lawful” that these words confer a faculty or power and they do not of themselves do more than confer a faculty or power. But the Lord Chancellor explained there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty must depend upon the facts and circumstances of each case and must be so decided by the courts in each case. Lord Blackburn observed in the said decision that enabling words were always compulsory where the words were to effectuate a legal right.[Emphasis supplied]

A lesser known, yet interesting, examination of “power coupled with duty” is contained in Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85, commonly referred to as the Privy Purses case. In this case, the subject matter of challenge was a Presidential Order withdrawing recognition to Rulers of Princely States. One of the questions that arose is whether Article 366(22) of the Constitution, which invested the President with the power to recognize Rulers, also contained within it a power to withdraw such recognition. It was argued by the Petitioner that the President’s power was coupled with a duty to maintain the constitutionally recognized institution of “Rulership” and, therefore, there could be no power to arbitrarily withdraw recognition and extinguish a constitutionally recognized concept. Justice J.C. Shah’s majority judgment, in upholding this contention, explained the concept of “power coupled with duty” as follows: –

“117. There are many analogous provisions in the Constitution which confer upon the President a power coupled with a duty. We may refer to two such provisions. The President has under Articles 341 and 342 to specify Scheduled Castes and Scheduled Tribes and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits e.g. reservation of seats in the House of the People, and in the State Legislative Assemblies by Articles 330 and 332, and of the numerous provisions made in Schedules V and VI. It may be noticed that Scheduled Castes and Scheduled Tribes are specially defined for the purposes of the Constitution by Articles 366(24) and 366(25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration, the President will be destroying the constitutional scheme. The power to specify may carry with it the power to withdraw specification, but it is coupled with a duty to specify in a manner which makes the constitutional provisions operative.[Emphasis supplied]

Justice Hegde drew a similar analogy: –

 “… In my opinion Article 366(22) imposes a duty on the President and for that purpose has conferred on him certain powers. In other words the power conferred on the President under that provision is one coupled with duty. There are similar powers conferred on the President under the Constitution. Under Chapter XVI of the Constitution certain special provisions were made for the benefit of the Scheduled Castes and certain Scheduled Tribes. Seats were reserved for them both in the Parliament as well as in the State Assemblies. Certain other benefits were also secured to them in the matter of appointments to services and posts in connection with the affairs of the Union or of a State. But the Constitution did not specify which castes were Scheduled Castes and which Tribes were Scheduled Tribes. Under Articles 341(1) and 342(1) of the Constitution, the President was given power to specify the castes which he considered to be Scheduled Castes and the Tribes which he considered to be Scheduled Tribes. Though both the Articles say the President “may” specify the castes which he considers as Scheduled and Tribes which he considers Scheduled, it is clear that a constitutional duty was imposed on him to specify which castes were Scheduled Castes and which tribes were Scheduled Tribes for the purpose of the Constitution. The word “may” in those clauses must be read as “must” because if he had failed or declined to specify the castes and tribes, Articles 330, 332, 334, 335, 338 and 340 would have become inoperative and the constitutional guarantees given to the Scheduled Castes and Scheduled Tribes would have become meaningless.[Emphasis supplied]

The reason I favour this explanation of “power coupled with duty” is not because of its explanation of the legal principle itself. Indeed, the interpretive concept is explained better in Ambica Quarry, and also in State v. I.K. Nangia, (1980) 1 SCC 258. However, the Privy Purses case appeals to me because it crystallizes the principle that, in a constitutional context, constitutional provisions which, at first blush, appear to confer discretion, ought to be read as conferring a power coupled with a duty, when the authorities failure or refusal to act would nullify a portion of the constitutional scheme, however small that portion might be. This is wider than the iteration of this concept in Ambica Quarry, which only speaks of a duty being implied if a legal right is to be effectuated.

Let’s call this principle, apparent in the Privy Purses case, the rule of constitutional consistency — a constitutional provision conferring power/discretion on a State authority, couched in permissive language, is to be treated as a provision containing a power coupled with a duty, if the failure or conscious omission on the part of such authority to act would nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle emerging from a mosaic of constitutional provisions.

In the next essay, I will substantiate this argument in the specific context of Article 16. By discussing a set of pending writ presently petitions before the Supreme Court, I will show that there is an asymmetry problem in the way that Article 16 as it is currently read, such that there is a hurdle for ameliorative measures to be put in place, but there is nothing to stop the State from entirely ignoring the under-representation of backward classes in the State service, or even from reverting them to lower posts for no better reason than political expediency.

(Karan Lahiri is an advocate practicing at the Supreme Court.)

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The Supreme Court’s Judgment on Jat Reservations: Problems and Prospects

Yesterday, in Ram Singh vs Union of India, the Supreme Court overturned a government decision to grant reservations to the Jat community in nine states (by including them in the Central List of Backward Classes [“Central List”]). The judgment has created a significant political stir. As a legal matter, however – and subject to observations in two paragraphs, which will be discussed at the end – the case was decided on specific, narrow grounds, and breaks no new ground as far as constitutional issues are concerned. In fact, the case is probably best classified as an administrative law judgment rather than a constitutional one.

The factual matrix of the case stretched back eighteen years. In 1997, in response to numerous petitions, the National Commission for Backward Classes [“NCBC”] carried out a study, at the end of which it recommended the inclusion of Jats in the Central List only for two districts of Rajasthan. Subsequently, in response to numerous representations to review this decision, on 19.7.2011, the NCBC decided to approach the Indian Council of Social Science Research (ICSSR), asking them to conduct a survey in various states (UP, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat), in order to determine the socio-economic status of Jats. By a subsequent Cabinet decision, the states of Bihar, Uttarakhand and NCT of Delhi were also referred to the NCBC.

The ICSSR submitted a report (but made no specific recommendations about inclusion/exclusion in the Central List). The report was discussed by the NCBC, which also held public hearings. At the end of this process, on 26.2.2014, the NCBC submitted a report to the government, stating that “the Jat Community had not fulfilled the criteria for inclusion in the Central List of OBCs.”  But on 2.3.2014, the cabinet rejected this report, on the ground that it did not take into account “ground realities.” Two days later, via a notification, Jats were placed in the Central List for the nine states.

At this point, it is important to note the status of the NCBC. It is a statutory body, established under the National Commission for Backward Classes Act, 1993. Under S. 9(2), it is provided that when it comes to inclusion or exclusion from the Lists, “the advice of the Commission shall ordinarily be binding upon the Central Government.” This closely followed the judgment of the Supreme Court in Indra Sawhney vs Union of India, where Justice Jeevan Reddy, commenting on the need for just such a specialised body, had observed that “its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefore.

Judicial review of administrative or executive action follows certain well-settled principles. Judges may not substitute their wisdom for that of the authorised decision-making body, and nor may they intervene to correct what they perceive to be a mistake of policy, or a mistake in interpreting existing data. However, if the administrative decision is made in ignorance of relevant material, or is based upon patently irrelevant material (or, for that matter, is made mala fide), then the Court may set it aside. What the NCBC Act does is to statutorily mandate that the report of the NCBC constitutes “relevant material” that the government is bound to adhere to, unless there are good reasons for the contrary (presumably, other relevant material). As the Court correctly noted, in paragraph 26, “the advice tendered by the NCBC is ordinarily binding on the Government meaning thereby that the same can be overruled/ignored only for strong and compelling reasons which reasons would be expected to be available in writing.” Consequently, all the Court needed to do was to verify whether the government had actually provided relevant reasons for departing from the NCBC’s report.

This is exactly what the it proceeded to do. First, it extracted the state-wise summary of findings of the ICSSR. While acknowledging that elements of “backwardness” (in terms of representation in government jobs, school dropout ratio etc.) existed with respect to the Jat Community in some of the states, the ICSSR also clarified that only limited material was available before it, and declined to make specific recommendations. On the basis of the ICSSR Report, along with other reports available to it, the NCBC decided that the evidence did not justify the Jat Community’s claim to “social backwardness”, for the purposes of Article 16 of the Constitution.

After a detailed examination of the NCBC’s reasons, as well as its analysis of the primary material, the Court noted:

Undoubtedly, the report dated 26.02.2014 of the NCBC was made on a detailed consideration of the various reports of the State Backward Classes Commissions; other available literature on the subject and also upon consideration of the findings of the Expert Committee constituted by the ICSSR to examine the matter. The decision not to recommend the Jats for inclusion in the Central List of OBCs of the States in question cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at on consideration of matters that are, in any way, extraneous and irrelevant… It may be possible that the NCBC upon consideration of the various materials documented before it had underplayed and/or overstressed parts of the said material. That is bound to happen in any process of consideration by any Body or Authority of voluminous information that may have been laid before it for the purpose of taking of a decision. Such an approach, by itself, would not make either the decision making process or the decision taken legally infirm or unsustainable. Something more would be required in order to bypass the advice tendered by the NCBC… An impossible or perverse view would justify exclusion of the advice tendered but that had, by no means, happened in the present case. The mere possibility of a different opinion or view would not detract from the binding nature of the advice tendered by the NCBC.” (Paragraph 46)

Additionally, the government’s contention that Jats were on the State Lists of eight out of the nine states was rejected by the Court, on the ground that those lists were made more than a decade ago, and that “a decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data.” (Paragraph 48) The Court also found that the minutes of the Cabinet meeting held just before the Notification reflected a focus on the educational “backwardness” of the Jat community by highlighting school, college and graduate enrollment (Paragraph 49). The “backwardness” contemplated under Article 16, however, was social backwardness. Consequently, the Court held that the cabinet notification ignored relevant material (the NCBC report) and, in turn, based itself upon irrelevant material (educational parametres and decade-old data); consequently, following the well-established principles of judicial review that we have discussed above, it set aside the notification.

So far, so standard. However, there are three further issues, highlighted in paragraph 54 of the judgment, that call for specific comment. First, the Court notes:

“Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness.”

While these lines have garnered a fair degree of attention in the press, it is important to note that this is simply a reaffirmation of the Court’s consistent position, spanning the last fifty years. As fas back as M.R. Balaji vs State of Mysore, in 1963, the Supreme Court held that a purely caste-based policy of reservations would violate the Constitution. While this blanket position was undermined in N.M. Thomas and Indra Sawhney, the position remains that while castes, which are generally “socially and occupationally homogenous classes” (Indra Sawhney, para 84), can constitute a convenient starting point for a reservations, the ultimate criterion is class backwardness. This means that caste groupings do not exhaust the scope of reservations under the constitutional scheme; and conversely, to the extent that a caste wishes to claim the benefits of the reservation scheme, it must demonstrate that qua class, it suffers from the social backwardness that Article 16 envisages. The failure of the Jat Community to demonstrate this latter point was what prompted the Court to observe, in another statement that has been widely quoted over the last twenty-four hours, that “an affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandate.”

The former aspect – that castes do not exhaust the scope of reservations – leads to the second important observation in the paragraph: the Court’s invocation of last year’s NALSA judgment, on the rights of the transgender community. The Court observes:

“New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness.”

This is a crucial point, because after the judgment in NALSA, the Union of India filed a clarification petition asking whether the placement of the transgender community within the Lists would have to first go through the NCBC. Here, the Court seems to clearly state that as per NALSA, the third gender has been judicially recognised as a socially/educationally backward class, entitled to affirmative action. This would suggest that the NCBC does not need to make a separate finding on the point, since the Supreme Court has already done so. But even apart from this, in May 2014, the NCBC did make a finding that transgender persons ought to be provided reservations. In accordance with yesterday’s judgment, the NCBC’s finding will be binding upon the government, unless overriding reasons are demonstrated. Consequently, the clarification petition ought to be disposed off as soon as possible, with appropriate directions to the government to add the transgender community to the Central List.

Secondly, the Union also observed that transgender persons do not “maintain a caste or community identity”, but at the same time might belong to specific SC/ST/OBCs. Here is where the Court’s focus on “new yardsticks” to measure backwardness becomes crucial, as does its acknowledgment – also in paragraph 53 – that social classes might be “internally heterogenous” (and based on gender). In other words, both substantively and procedurally, paragraph 53 amounts to a strong endorsement of the right of the transgender community to affirmative action, and takes the promise of NALSA vs Union of India a significant step forward.

And lastly, in the penultimate paragraph (54), after affirming that “backwardness” ought not to be judged relative to other groups, but on absolute parametres, the Court observes:

“[the] inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”

It is interesting that among all the adjectives that the Court might have chosen to describe the Jats, it picks “politically organised”. This opens up a plethora of fascinating questions, the first among which is: is political power, or access to political power, the main criterion for determining “social backwardness”? Is a politically organised group, just for that reason, no longer “socially backward”? And if not – recall that the very origins of judicial review lie in the understanding that “discrete and insular minorities“, who are likely to be sidelined or marginalised by the normal workings of the political process, need additional protection from the brute majoritarianism. Is there some conceptual connection with that idea, which is in the Court’s mind? Does the Court mean to say that groups who have managed to gain access to political power are expected to now leverage it in order to lift themselves out of their social backwardness? Or is the Court concerned that politically organised groups will use their clout to win reservations for themselves even when they don’t need it (a fear that is also visible in some US affirmative action cases)? The Court does not answer any of these questions here, but it will be interesting to see what importance – if any – it might accord to the political influence of groups claiming backward status, in the future.

 

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The Supreme Court on Reservation Benefits for the Reconverted

In an interesting judgment delivered last month, a two-judge bench of the Supreme Court held that, subject to certain conditions, an erstwhile Christian who “reconverted” to Hinduism was eligible for Scheduled Caste reservation benefits. On March 12, the Indian Express carried a highly critical appraisal of the judgment. For reasons that I will shortly explain, I do not agree with the article. On the contrary, I feel that in terms of the limited question before it, the case was correctly decided – and furthermore, it also contains the germs of a new, progressive jurisprudence dealing with conversions and affirmative action.

The appellant, K.P. Manu, had a great-grandfather who belonged to the Hindu Pulaya community (which is a Scheduled Caste). His son – i.e., the appellant’s grandfather – converted to Christianity. The appellant’s father was also a christian. But at the age of 24, the appellant “reconverted” to Hinduism. He applied for a caste certificate from his community and from the local tehsildar, both of whom issued it to him. This was challenged before a Scrutiny Committee, which recorded a finding that the caste certificate was incorrectly issued, on the ground that the appellant’s father and grandfather had been christians, and that even after his “reconversion”, the appellant had married a Christian woman.

On the basis of the Scrutiny Committee’s report, the State Government directed the appellant’s employer to remove him from service and recover Rs. 15 lakhs from him. This was challenged before the High Court, which affirmed the Committee’s findings. Consequently, the appellant approached the Supreme Court.

Therefore, the Supreme Court was faced with a very narrow question: is a reconvert from Christianity entitled to reservation benefits if his original/ancestral caste is a Scheduled Caste? To answer the question, the Court analysed a number of its previous judgments dealing with the issue of conversions and affirmative action. According to the established jurisprudence of the Supreme Court, “ordinarily”, conversion from Hinduism would mean an expulsion from one’s caste. This was not a hard-and-fast rule though, since admittedly, the caste system been partially incorporated into other religions as well. Consequently, the question would be decided on a case-to-case basis, depending upon the “structure of the caste, and its rules and regulations.”

Because, ultimately, the structure of the caste, and its rules and regulations, were all internal matters, the Court held that a “reconvert” from Christianity would be treated as belonging to his original caste if “the members of the caste accept him.” (paragraph 13) The basic principle, as explained by a prior Constitution Bench decision, was that on conversion from Hinduism, one’s original caste was “eclipsed”, and if “during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives.”

The State argued that the Court’s prior decisions were limited to reconversion either within the same generation, or – at most – situations where one’s parents converted to Christianity, and one converted back. It contended that the “eclipse theory” could not be extended beyond a generation. In paragraph 33, the Court rejected this contention, holding that “as we understand the authority it does not lay down that it only would apply to the parents and exclude the grandparents.” The Court observe – in my opinion, correctly – that caste stigmas tended to persist through generations (and even upon conversions) – and that therefore, “eclipse-and-revival” was not limited to a single generation. Therefore, it held:

“In our considered opinion, three things that need to be established by a person who claims to be a beneficiary of the caste certificate are (i) there must be absolutely clear cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the original religion to which the parents and earlier generations had belonged; and (iii) there has to be evidence establishing the acceptance by the community. Each aspect according to us is very significant, and if one is not substantiated, the recognition would not be possible.” (para 34)

All three, of course, were empirical questions.

In my opinion, it is difficult to find fault with either the reasoning or the conclusion. On the specific issue of reconversion and the benefits of reservation, the Court was bound by previous three-judge and Constitution Bench decisions. The innovation in this case is the holding that eclipse-and-revival does not cease if there is a generational gap between conversion and reconversion. I think that the Court is correct to ground this in the fact that social and economic disabilities – which is the entire raison d’etre for reservations – do not disappear with conversion, even across generations.

The Indian Express article has two broad criticisms of the judgment. First, it argues that this constitutes an incentive to “ghar wapsi“. That may or may not be so, but as we have just discussed, that question was not res integra, since it has already been established that reservation benefits can be availed of in cases of reconversion. In any event, ought the Court have held that one is not entitled to reservation benefits on reconversion? That, to me, seems to be as morally fraught a position as the incentive-to-ghar-wapsi.

Secondly, the Express piece argues that in holding that a person loses reservation benefits upon conversion to Christianiaty (or Islam), the judgment enshrines a “majoritarian view” of religion. Since the Constitution treats Buddhism and Sikhism as falling within the category of “Hinduism”, it discriminates against non-Indic religions by creating a situation where a person will not lose reservation benefits if she converts to Buddhism/Sikhism, but will if she converts to Islam/Christianity. The piece also argues that it is incorrect to assume that social and economic disabilities disappear on conversion. The focal point of its criticism is contained in the following quote that it excerpts:

“The court observes: “Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease, and hence it is no longer necessary to give him protection…””

At this point, it is crucial to note that this was not an observation of the Court. It is a quote from the previous judgment of Arumugam vs Rajgopal, a previous three-judge bench that the present Court was bound by. Now there is no doubt that this is a very unfortunate legal position, and as a matter of simple fact, patently untrue. Caste-based social and economic difficulties are far too deeply entrenched to be ameliorated by a formal conversion. So, the Indian Express piece is correct to note that:

“Caste consciousness is part of our everyday lives; its universality renders it normal. However much we may delude ourselves, we are all scarred by it. Dalits, irrespective of their religious beliefs, are oppressed victims of deep prejudice and the irrational, wicked belief in Dalit inferiority. To make the argument that the caste system is not recognised by Christianity and Islam is to ignore the realities of the country.”

That said, however, the question of losing caste – and thereby, reservation benefits – upon conversion was not before the Court, and it could not have decided upon it. Furthermore, being a two judge bench, it was entirely bound by precedent, and could not have changed this position even if it wanted to.

That said, a close reading of the judgement reveals that the Court was acutely aware of the problem, and to the extent possible, attempted to craft the beginnings of an alternative jurisprudence. From paragraphs 22 to 31, it quoted B.R. Ambedkar, James Massey, Archbishop George Zur, the Mandal Commission, a Church of the South India Commission, the Chinnappa Commission Report, and a political scientist, all for the proposition that caste-disabilities do not disappear upon conversion. Summing up these observations, it observed in paragraph 32:

“We have referred to the aforesaid materials and the observations singularly for the purpose that there has been detailed study to indicate the Scheduled Castes persons belonging to Hindu religion, who had embraced Christianity with some kind of hope or aspiration, have remained socially, educationally and economically backward.”

The Court then used this fact to reject the State’s contention that the eclipse-and-revival theory was limited to a single generation. If the caste stigma was never lost, even upon conversion, then why ought there be a denial of the reservation entitlement upon reconversion.

While this seems to be in line with Arumugam’s Case, there is a crucial conceptual shift. In Arumugam’s Case, because the Court first held that reservation benefits are lost upon conversion because the social/economic disabilities disappear, its eclipse-and-revival conclusion must be based upon the corollary that on reconverting, one falls right back into those very disabilities that one had escaped in the first place by converting. In the present case, however, the Court extends the eclipse-and-revival theory to multiple generations on the very different reasoning that caste-based disabilities are not lost upon converting and, indeed, persist throughout generations. This is actually precisely in line with the Indian Express critique!

But if caste disabilities are not, as it turns out, lost upon converting, then the inevitable conclusion must be that reservation benefits should not be lost upon conversion. This is because, as the Court as held multiple times, the basis of reservations is social and economic backwardness, and “caste” is simply a convenient (but by no means only) marker of measuring such backwardness. Holding that reservation benefits remain even after conversion, because the ultimate justification (backwardness) is not altered, would be well in line with the Court’s core affirmative action jurisprudence and philosophy.

In K.P. Manu’s Case, the Court has recognised these realities, and its reasoning on eclipse-and-revival directly undermines the established jurisprudence on loss-of-benefits-upon-reservation. It represents the possibility of an alternative jurisprudence that is much more sensitive to the lived realities of caste, disabilities and discrimination.

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Reservations, Equality and the Constitution – X: Untidy Endnotes

Let us try to sum up the long and tortuous judicial history of reservations in India. Conceptually, I suggest that we can divide this history into three distinct phases. The first phase, that lasted from 1950 (Champakam Dorairajan to N.M. Thomas), can be called the “colour-blind phase”. The judges held that the vision of equality that the Constitution subscribes to is “colour-blind”, that is, it refuses to take any account of caste, race, sex, religion etc. in the distribution of benefits and burdens. Articles 16(4) and – after Champakam, 15(4) – were constitutionally mandated exceptions to the rule and, as such, were to be construed narrowly, being departures from the norm. Cases like Balaji, which imposed a 50% cap on reservations, best embodied this view of the Constitution.

In N.M. Thomas, the Court shifted to a group-subordination view of equality, according to which groupings such as caste must be taken into account to achieve genuine equality, since historically, these groups have been the site and the locus of sustained discrimination. In holding that Article 16(4) is not an exception to, but a facet of 16(1), the Court effectively held that 16(1) itself – and thus, the equality code as a whole – is committed to the group-subordination vision. As we have seen, it is unclear whether this view ever commanded a majority of the judges in a decision.

Post Indra Sawhney, in the 90s and the 2000s, the pendulum swung back towards the middle. Now the Court held that while 16(1) was about colour-blindness, 16(4) was about group subordination, and both were independent guarantees of equality that had to be balanced against each other. So 16(4) was no longer an exception to 16(1), but neither was 16(1) just a more abstract way of expressing 16(4) – rather, both constituted different elements of the overall 14-15-16 equality code.

This view of two conflicting vision of equality, to be held and balanced against each other, ultimately permitted Parliament a wide degree of latitude both in devising schemes of reservations and justifying them by amending the Constitution itself. This was done through the introduction of Articles 16(4A), 16(4B) and 15(5), the first two of which were expressly introduced to overcome adverse Court decisions. By constitutionalising the carry-forward rule, the catch-up rule and educational reservations for OBCs, Parliament repeatedly shifted the balance towards empowering identified groups, at the cost of formal individual equality. These amendments survived basic structure scrutiny because the Court, having already held that the Constitution was committed to both visions, could hardly forbid Parliament from shifting the balance this way or that. Presently, the “private, unaided educational institutions” aspect of 15(5) is under basic structure scrutiny. The outcome of the case will be interesting, because it will demonstrate how far the Court is willing to let Parliament go with modifying the existing balance that it first invoked in Indra Sawhney.

We have also seen that group-based reservations are justifiable on two distinct grounds. One theory holds that the ultimate goal of the society is to get to a point where group identity becomes irrelevant; but that point can be reached only by using group identity as a locus for remedial programs, aimed at eradicating a present inequality that has been caused by historical circumstances. This theory continues to value the individual as the ultimate subject of its solicitude, and views group-based action as a necessary evil. On the other hand, the opposite theory values the group for itself, and views reservations as, ultimately, designed to achieve equality not between individuals, but between groups.

The two theories, as we have seen, clashed in the Court’s last major reservation case, Ashoka Kumar Thakur, and the Court emphatically asserted that the Constitution was concerned, ultimately, with bringing about a casteless society. The judicially-crafted doctrine of the creamy layer demonstrates this commitment. The creamy layer denies reservations to those individuals belonging to identified beneficiary groups (on the basis of caste) who do not share the social and educational backwardness that has provided the ground for singling out that caste in the first place. Notice that if ultimate group equality was the goal of the Constitution, then the creamy layer doctrine would be entirely uncalled for.

This, however, raises the following interesting point. In Ashoka Kumar Thakur, the Court expressly rejected the creamy layer doctrine when it comes to Scheduled Tribes and Scheduled Castes. This suggests that within the group subordination vision of equality, both subsidiary visions – the one of an eventually casteless society, that seeks to dissolve groups, and the one of a society in which groups exist based on equality – are at play. Now, this conceivably makes sense in the case of Scheduled Tribes. Arguments from multiculturalism and pluralism provide a plausible justification for preserving and strengthening the identity of defined sub-groups with their own particular ways of life (although, admittedly, arguments by feminists focus on inter-se inequalities within such groups – see, e.g., Benhabib, The Claims of Culture).  But on what basis – if the aim is a casteless society – is there a distinction between Scheduled Castes and other castes? Do Scheduled Castes have a claim on group preservation that non-Scheduled Castes don’t? The Court, in refusing to extend the creamy layer doctrine to Scheduled Castes, cites Constitutional provisions that define the group – but in so doing, it creates a doctrinal and conceptual incoherence, where different standards of equality are applied to analytically identical groups.

The selective application of the creamy layer doctrine represents a deeper conceptual problem with the Court’s reservations jurisprudence. The Court has never clearly stated what the ultimate goal is; if the goals are multiple (substantive equality? casteless society? equivalent representation?), then how do they relate to one another? Most importantly, how does the methodology (such as the 21-point Mandal Commission) relate to – or even, help in identifying – the goals at stake? A failure to address and answer these questions is largely responsible for the profusion of constitutional amendments that have brought in highly concrete administrative regulations into the domain of constitutional law, as well as the conflicting signals that have repeatedly issued from the bench, over the last two decades.

One way of doing this, as was suggested in the last post, is to adopt a form of intermediate scrutiny in adjudicating reservation cases. If the ultimate goal is, indeed, a casteless society, then caste-based classifications that ground the distribution of benefits and burdens, are at least presumptively suspect. Because the Constitution expressly envisages group-based reservations, though, it is perhaps not appropriate to hold the government to the level of strict scrutiny. Intermediate scrutiny solves both problems. It requires the government to demonstrate a substantial interest (which, following Ashoka Kumar Thakur, would probably be the eventual achievement of a casteless society), and to then show that there is a reasonable fit between its scheme of reservations, and the ultimate goal. Indeed, as was suggested in the last post, the creamy layer – without the Court quite knowing it – has been serving as just this kind of intermediate scrutiny. Whether or not the Court expressly adopts intermediate scrutiny at any point, there is, at the very least, an urgent need for doctrinal and conceptual clarity in the reservations jurisprudence: what values are at stake, and what are the permissible means of achieving the values, that take into account individual rights as well as historic and continuing social discrimination? Perhaps the next basic structure case will be the case that achieves that.

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Reservations, Equality and the Constitution – IX: Ashoka Kumar Thakur and Tiers of Scrutiny

The concurring opinions of Pasayat J. and Bhandari J. do not, in substance, depart from the holding in the Chief Justice’s opinion. Both opinions emphasize that reservations for socially and educationally backward classes must remove the creamy layer, if they are to be constitutional. This, as we discussed in our last post, shows that the ultimate subject of analysis, as far as SEBC equality goes, is not the backward class, but the individual. And indeed, Bhandari J. says as much in his opinion.

Two aspects of Bhandari J.’s opinion stand out. First, he severs “private, unaided institutions” from Article 15(5), holding that by a complete exclusion of Article 19(1)(g), subjecting private, unaided institutions to reservations violates the basic structure. Whatever the merits of this argument, it is important to note that no private institution appeared in this case, the question was not before the Court, and the issue was not argued. For a judge to rule on an issue that is not before the Court and is not argued by the lawyers, in an adversarial legal system, is judicial bad form.

Secondly, and more pertinently, Bhandari J. cites a raft of constituent assembly debates, as well a series of precedents, to argue that the ultimate goal of the Constitution is to achieve a casteless society, and the constitutionality of reservation policies must be judged by that standard. In so doing, he seeks to reject a caste-based identification of socially and educationally backward classes, and shift to an economic test, although he cannot do so because of the binding opinion of the nine-judge bench in Indra Sawhney.

The observations, however, are a good point of departure to examine the last remaining issue. As we discussed in the last post, it was argued before the Court that the American doctrine of strict scrutiny ought to be applied to reservations. As we saw, the Chief Justice rejected the proposition out of hand, on the ground that the American and Indian constitutions are drafted differently. This, however, is not reason enough in itself, because the American Constitution makes no mention of strict scrutiny – it is entirely a judicial creation. In order to understand the stakes, then, a brief digression into American doctrine would be appropriate.

The Fourteenth Amendment to the American Constitution, passed in the aftermath of the Civil War, guarantees to all citizens “the equal protection of laws”. The question then becomes: what constitutes constitutionally impermissible unequal treatment?

American courts answer this question by subjecting classifications to three different tiers of scrutiny, based on the manner of the classification in question. The first level is “rational review” scrutiny. A classification is permissible as long as the government can establish a goal with which it is rationally connected (notice the similarities with a standard Article 14 analysis).

The second level is “intermediate scrutiny”. This is primarily used in cases of sex discrimination. Intermediate scrutiny requires the government to show a “substantial interest”, that is “reasonably” served by the classification in question. In many of the sex equality cases, sex-based classifications have been invalidated because they have been found to be based on outmoded stereotypes about the role of men and women in society (such as, for instance, that women are required to be the primary care-givers) – the perpetuation of which is not taken to be a goal that the government has a substantial interest in.

The third level is “strict scrutiny”, which applies to “suspect classes”, such as race. A race-based classification, then, must demonstrate a compelling governmental interest, and must also be narrowly tailored – that is, it must be the least restrictive way of achieving the compelling interest at stake. There has been bitter controversy between the liberal and conservative wings of the American Supreme Court as to whether strict scrutiny ought to apply to race-based classifications that are remedial or beneficial in nature, such as affirmative action policies; as of now, because of a conservative majority on the Court, all race-based classifications, no matter what their aim, are subjected to strict scrutiny, and consequently, affirmative action programs have been severely cut-back, and quotas held unconstitutional altogether.

The basic idea behind heightened scrutiny is that certain classifications – such as those based on race – are inherently harmful because either they stigmatize individuals, or that they fail to respect individuals by treating them not as individuals, but as members of racial groups. They also come bearing a history of terrible repression and discrimination. Consequently, the government is held to a near-impossible standard when it aims to use that particular method of classification.

There are two points to be made here. The first is that in many ways, caste in India, and race in the United States, have had a relevantly similar history. In particular, they have been used as identifying labels to sort a group of people into a permanently subordinate category, excluding them from normal economic and social life, and placing them in a position of extreme inferiority. The site of discrimination has been the identifying label itself – a person’s race, or caste, marks them out as deserving or undeserving of equal concern and respect from society. This explains, then, why the framers were so concerned with the goal of achieving a casteless society – they understood that in order to eradicate discrimination, its most potent marker would also have to be eradicated.

Now, that doesn’t resolve the issue. As is repeatedly argued in the United States, to get beyond race, you need to take race into account. If, for centuries, black people were kept in conditions of extreme subordination, then ushering in a regime of formal equality will only mean that their subordination will continue, because they are in no position to compete on equal terms with people who have had a two-century head-start. Consequently, true equality will require the government to take race into account in crafting affirmative action and other socially beneficial programs that, in a sense, compensate for the historically-determined present-day subordinate position of a class that is only formally free and equal. Of course, it is crucial to craft such programs in such a way that classification on the basis of race is a tool to achieve a society in which race becomes entirely irrelevant to social life. That is to say, paradoxically enough, race-based programs are designed to eliminate race, and not to entrench it.

The analogy is now obvious. We aim at a casteless society, but also understand that to get there, we need to take caste into account in crafting present-day beneficial and remedial programs. Much of Bhandari J.’s judgment focuses precisely on this (and this perhaps explains why he is far more sympathetic to American doctrine than the other judges). His advocacy of an economic test to determine social and educational backwardness stems from his suspicion that we shall ever truly be able to get beyond caste if we use caste-based classifications to redistribute educational opportunities in society.

We can now see, with Bhandari J., that while strict scrutiny is perhaps an inappropriately high standard to hold the government to, given the inherent dangers in caste-based classifications, there is a good case to be made for an intermediate standard of review – one that requires the government to show something more than simply a rational connection between its classification and its goal, but something more. In other words, the government ought to be able to demonstrate how its caste-based identification of socially and educationally backward classes reasonably contributes to the goal of achieving a casteless society.

And indeed, the use of the creamy layer doctrine is an instantiation of this form of intermediate review. The creamy layer doctrine circumscribes the discretion of the government in selecting socially and educationally backward classes on the basis of homogenous categories such as caste. It requires the government to wean out those members of an identified caste who are not, as it turns out, socially and educationally backward. By doing so, the doctrine seeks to ensure that there really is a substantive connection between eventual castelessness, and the affirmative action programs being used to achieve that goal. Some form of such scrutiny also exists when the Court, for instance, holds that reservations cannot be used for posgraduate studies, or in technically demanding fields such as aviation.

Intermediate scrutiny, therefore, exists in our affirmative action doctrine, although we don’t call it that. If the creamy layer is one particular instantiation of intermediate scrutiny, though, there is no reason why the Court shouldn’t subject caste-based affirmative action programs to a more general and broad intermediate scrutiny. In other words, instead of according near-complete deference (barring creamy layer) to the government in its selection of SEBCs, the burden should lie on the government to demonstrate in a convincing way how its program – if it is caste-based – will avoid the peril of entrenching (and not removing) caste. Unlike strict scrutiny, the government would not be placed under the near-impossible burden of showing that its program is the narrowest possible way of achieving its goals, but it would still be required to show that there is reasonable connection.

Given its emphatic rejection of American doctrine in Ashoka Kumar Thakur,  it is unlikely that the Supreme Court would adopt this. As 15(5) is currently undergoing another basic structure challenge, however, it does provide an opportunity for the Court to do so, and require the government to more carefully circumscribe and shape its quota systems, than it is doing at the present.

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Filed under Equality, Reservations/Affirmative Action