Guest Post: The Chakma/Zo Issue in Reservations in Mizoram

[This is a guest post by Karina Chawla.]

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In 2023, the State of Mizoram released a notification with rules for reservations in selection to Higher Technical Courses. However, in 2016 a similar notification was passed which was set aside by the Hon’ble Gauhati High Court. In this post, I make two arguments. First, that by imposing additional requirements on the Chakma community to avail such reservations, there has been a violation of the classification test under Article 14; and secondly, by directly overriding the earlier judgment of the High Court, the State has committed an illegality. While there are other issues relating to the sub-classification of Scheduled Tribes in light of E.V Chinnaiah vs. State of Andhra Pradesh and State of Punjab vs. Davinder Singh, the same is not within the scope of this post.

Background

In 2015, the State of Mizoram had issued a notification notifying the rules of reservation for the Selection of Candidates for Higher Technical Courses. These applied to Category I and Category II residents. The Zo ethnic people fall under Category I residents and the rest, Category II.

The said notification reserved all seats for permanent residents of Mizoram only to the “Zo ethnic people”. At this point, it would be crucial to mention that the expression “Zo ethnic people” is not defined under any law but it appears to mean the majority “Mizo” tribe, thereby excluding students belonging to the non-Zo tribes of the State. Thereafter, on a Public Interest Litigation filed in the Gauhati High Court, the Court struck the same down. In 2016, the State issued another notification with the same text as the notification challenged earlier. The notification reserved 95% of the seats for the Zo tribe. The only difference was the deletion of the words “indigenous” and “non-indigenous”. The Petitioners, Mizo Chakma Students Union, approached the High Court once again to challenge the notification, and the operation of the notification was stayed. The High Court specifically observed that the Zo and non-Zo tribes must be placed in the same category. However, in 2021, the State released yet another notification (“impugned notification”) which reserved 93% of the seats for the permanent residents of Mizoram, i.e. the Zo tribe and only 1% of the seats were reserved for the Non-Zos. However, there was a rider attached to the reservation provided to the non-Zo students, i.e. they should have passed Classes XI and XII from any school within Mizoram, and recognised by the State. The impugned notification was challenged in the High Court; however, it was dismissed. The Student Union has now filed a petition in the Supreme Court.

Not only did the State override the crystal clear ruling of the High Court but also added more qualifications without a reasoned explanation.

The notification creates an artificial classification between Zos and non-Zos

As per the twin test of West Bengal vs. Anwar Ali Sarkar, there needs to be an intelligible differentia along with a reasonable nexus to the objective being sought. The additional qualification on the students belonging from non-Zo tribes has been placed without the existence of any intelligible differentia between the two tribes. Moreover, the State has never clarified its objective behind this notification vis a vis the additional requirement. The rider would have made more sense than it does now (not completely even then) if this additional educational qualification would have been placed on all tribes of Mizoram falling under this classification. The onus on the State here is to explain why tribes like the Chakmas that are already more disadvantaged than their counterpart tribes need to bear the brunt of meeting this qualification. In the case of Patalli Makkal Katchi vs. A Mayilerumperuma, the Supreme Court held:

…As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid… (para 95)

The Supreme Court time and again has held that the absence of an artificial classification is not the only requirement for such a legislation to succeed. The state also needs to show the existence of substantial differences with clear differential attributes that lead to well marked classes.

In this context, it is crucial to remember that the notification aims to provide reservations in Higher Technical Courses. Even on purely logical grounds, there seems to be no imaginable explanation as to why the rider should not be placed on both categories, even if it has to be placed, that is. In 1989, the Gauhati High Court upheld the requirement of the educational institute of the student to be within the State of the Higher Education Institute; however, that was considered to be a blanket requirement on all categories of students.

While there need not be any statistical justification at the outset, the State at the very least must provide the bare minimum of providing the objective of this executive act, particularly the inclusion of the additional educational qualification on Category-II tribes, i.e. the non-Zo tribes. Moreover, it is necessary that the State clearly elucidates what objective is being sought to be achieved through this execution action. This prong becomes even more pertinent in light of Dr. Subramium Swamy vs. Director, CBI where the Supreme Court clearly held that it is the legality of the objective of the legislature which must be given primacy rather than the reasonable nexus of the differentia with the objective. I argue that in the current Special Leave Petition filed in the Supreme Court, the petitioners have a chance at success if the State fails to justify its burden.

The notification fails at curing the infirmities for which it was struck down by the High Court earlier.

As mentioned earlier, the Gauhati High Court had struck down a similar notification in the past. There is established jurisprudence which states that a ruling of the High Court cannot be overriden without curing the infirmities for which it was struck down in the first instance. Here, the State not only ignored the infirmities that were pointed out earlier, but also added more defects through the impugned notification.

In 2022, the Supreme Court in  G. Mohan Rao & Ors. vs. State of Tamil Nadu & Ors laid down a four pronged test that establishes the settled position of law with respect to enacting a retrospective validating act. Inter alia, the court held that there must be a substantive change from the earlier position of the law. Moreover, the only permissible way to render the decision of the court ineffective is by removing the very material basis of the decision. Simply put, this is to say that if that if this material basis did not exist, then the Court would not have arrived at the same conclusion that it did. For the judgment to be rendered ineffective, the infirmities for which it was struck down in the first place have to be cured.

In exercising power, by “mere declaration and without anything more” a judicial decision cannot be revised or overridden. The impugned notification only also fails the manifestly arbitrary test as laid down in Shayara Bano vs. Union of India. The test invalidates subordinate legislation that is done capriciously and without adequate determining principle. In the present case, the impugned notification provides no determining principle either for the artificial classification it makes, nor for overriding the earlier decisions of the Gauhati High Court.

Conclusion

The Supreme Court has set aside the order of the High Court dismissing the plea of the petitioners and has issued notice. The Supreme Court has accepted the merit in the petitioners argument and remanded the case back to the Gauhati High Court which had disposed it off earlier. While the hearing in the High Court is still pending, the author believes that the Chakma Student’s Union along with the other petitioners is in a good place to convince the Court to strike down the impugned notification. Firstly, there is no objective behind the classification vis a vis the additional requirements. Even if the law on sub-classification of Scheduled Tribes is not clear as of now, considering how Davinder Singh referred the question to a larger bench, there are other convincing grounds to strike down this notification. The impugned notification in effect entrenches the hegemony of the majority tribes in Mizoram while marginalising communities like the Chakma Community further by pushing them to the periphery. The 2011 census clearly shows that the Zo tribe has the highest literacy rate at the national level for a scheduled tribe population. On the other hand, the Chakma tribe, despite being the second largest tribe after the Zo tribe, has the lowest recorded literacy rate in the state. Moreover, only 13.7% of the student population of the Chakma tribe attend educational institutions as compared to the figure of 27.9% for the Mizo tribes. In light of this data, it seems highly counterintuitive for the State to impose such qualifications on an already backward tribe. Alternatively, and in any event, the State cannot, through executive action, override a judgment of the Court without either curing the infirmity, or removing the basis of the judgment.

Guest Post: The P&H High Court’s Judgment on Domicile Quotas in the Private Sector

[This is a guest post by Varun Dhond.]

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Economic liberalisation, privatization and the resultant shrinking share of the public sector, has limited the extent of reservations in employment. One method for States to address this and expand the scope of affirmative action is by passing laws providing for reservations in the private sector. This will give rise to its own set of challenges and will require adjudication by Courts in the future. Another method for States to increase the share of reservation for their people is by introducing domicile quotas. These quotas are often criticised for promoting ‘linguistic chauvinism’ and failing to balance A. 19 freedoms.

The State of Haryana recently adopted a mix of both these methods, which was challenged before the Punjab and Haryana High Court.

The Haryana State Employment of Local Candidates Act, 2020 was challenged before the Punjab and Haryana High Court for (i) being Violative of Part III of the Constitution [specifically A.14 and A.19(1)(g)]; and (ii) the state not having legislative competence, since (a) the law fell within the domain of List I, Entry 81 (Inter-State Migration) of the 7th Schedule and (b) that the State was barred due to A.35, which granted exclusive competence to the Parliament/Centre..

The Act provided for inter alia 75% reservation in private employment (excluding any form of public employment under the Centre or State Govt) for ‘low paying jobs’ for a period of 10 years. According to the State, a large influx of ‘migrants’, competing with locals for low paying jobs, was impacting the local infrastructure, leading to environmental and health concerns. It was thus set out by the State that the law would promote local employment and give the state a buffer of 10 years to develop its local infrastructure to meet the demands of migrant labour. The State further contended that industrial powerhouses were exerting their dominant position to enforce an inequitable bargain with migrant labour to lower the wage benchmark, and that local unemployment needed to be addressed. Thus, the law justified creating a classification based on an intelligible differentia that had a rational nexus to the objects sought. The State also contended that industrial plots were allotted in lieu of 75% local employment as a pre-condition for allotment, but the aspect of allotment wasn’t in lis before the HC.  

There were 4 questions decided by the HC: 

(1) Maintainability: The HC followed settled law that reliefs under writ jurisdiction can’t be denied on technicalities as laid down by the 11 Judge Bench of the SC back in the ‘Bank Nationalisation Case’. The HC thus rightly held that the Petitions were maintainable, since an association of persons could invoke writ jurisdiction, if they had a legitimate interest involved. 

(2) Legality of Reservation in Private Employment: The HC opined that the Law would “destroy the precious heritage of this nation and the identity of the Constitution of India has to be protected”. By relying on Govt. of NCT Delhi v. Union of India, the HC borrowed principles of constitutional morality, which it considered an ‘essential check’ on unbridled power without checks and balances. It further stated the need for ‘cultivating the understanding of constitutional renaissance’ and that constitutional idealism would dictate ‘an implicit trust’ between constitutional functionaries. Thus, the actions of the State to distinguish between citizens of the country based on their domicile would be contrary to the above principles. I am disinclined to agree with the approach of the HC.

The HC followed a peculiar reasoning by holding that the state can’t provide for reservation in private employment, if reservation provided in the same manner, in public employment, is forbidden. While doing so, however, the HC failed to explain exactly how reservation in the public employment, if provided in the same manner, is barred. In the case of M Nagaraj, the SC had upheld reservations in promotions for SC/ST’s, relying on the flexible/dynamic nature of the constitution. While doing so, the SC laid down three tests (referred to as the ‘triple test’) which needed to be fulfilled when granting reservation in public employment. The HC failed to conduct such an exercise or engage with what are the legal standards or tests which will be needed to be applied by Constitutional Courts when evaluating/interpreting laws dealing with reservation in the private sector.  

The HC thus failed to decide the fundamental question, on whether reservations in the private sector are constitutional. The consequent question that thus arises is whether the triple test of Nagaraj ought to be applied to private reservations as well. This was a question which required adjudication by the HC as it is an issue that is likely to persistently arise in the future.

(3) Legislative Competence of the State to pass the Law was challenged on 2 grounds:

(a)  Specific Bar under A.35 r/w. A. 16(3): The HC rightly rejected this contention and held that the bar under A. 16(3) was only qua public employment and thus wouldn’t apply to the Law in challenge.

Nevertheless, the HC went on to conclude, based on the merits of the law, that it was “beyond the purview of the State to legislate on the issue and restrict the private employer from recruiting from the open market”. While doing so, the HC referred to a constitutional bar against discrimination of citizens based on their place of birth and residence, without considering the fundamental distinction (see below). While acknowledging that A. 16(3) will not be applicable to private employment, the HC followed a similar line of reasoning: that equality of opportunity in employment is guaranteed, there can’t be discrimination in employment and that if at all, it is for the Union/Centre to do so and thus beyond the purview of the State. Here, the HC’s reliance of A.16 is misplaced, since the SC in Government Of Andhra Pradesh vs P.B. Vijayakumar has clearly laid down that the scope of A.16 is limited to public employment.

(b) Applicability of Entry 81 of List 1 of the 7^th Schedule: the HC held that while the Law used the term ‘migrant’, the pith and substance of the law didn’t deal with ‘inter-state migration’. While disapproving of the term ‘migrant’ to refer to non-domiciled labour, the HC held that “an effort is being made to distinguish between the citizens of this country on account of their domicile and their belonging to the State of Haryana”. The HC further noted that “India is one integral whole and it is an indestructible unit but had only been divided into different States for the convenience of administration” and that commercial intercourse was one of the principles which were conceptualised by India’s founding fathers. The HC thus accepted the Petitioners’ contention and concluded that the underlying object of the legislation was “to create an artificial gap and a discrimination qua the citizens of India” and was thus detrimental to national interest.

The HC came to such a conclusion based on incoherent reasoning, since there is a fundamental distinction between granting reservation on the basis of ‘place of birth’ and ‘domicile’. This distinction has been accepted by the SC in DP Joshi v. State of Madhya Bharat, wherein the constitutional validity of reservations on the basis of domicile was upheld.

Another limb of the HC’s rationale was that the law was contrary to constitutional principles as it was majoritarian in nature, based on popular sentiments. Such a reasoning alone, can’t be the basis to strike down a Law unless it is found to be violating of Part-III of the Constitution. The HC also cautioned that such a law would result in different states enacting similar laws which would result in “putting up artificial walls throughout the country.” This, too, is flawed, since an unforeseeable future outcome can’t be a consideration to strike down a law in the present.

(4) Reasonable Restrictions under A.19.

The HC held that the impugned law was disproportionate, as it extended to all types of private employment, and granted the State powers to exercise absolute control over a private employer (the HC referred to this as ‘license raj’). I am inclined to agree that the impugned law, as it stood, ought to have been struck down for being disproportionate and unreasonable, due to the vast expanse of powers granted to the State. Nevertheless, the manner in which the HC arrived at its conclusion must be scrutinized.

Any form of rights based analysis would require a Court to discuss the nature of restrictions imposed and decide whether they are proportionate, based on the State justifications. The State justified the laws on the basis of policy considerations: that the law was needed to develop adequate infrastructure for migrants and address problems of local unemployment. The HC failed to engage with the State’s justifications for the law or to explain how the law is disproportionate. It is thus significant to note that the HC didn’t follow a deferential standard of review since it ignores presumption of constitutionality and the notion that the legislature must be presumed to have understood and deliberated on the needs of people. On the contrary, the HC doubted the justifications behind the law and actively rebutted it in the strongest terms.

The HC held that the Law is contrary to constitutional freedoms under A.19 and unconstitutional, since “a wall could not be built around by the State and the spirit and sole of the oneness of the Constitution of India could not be curtailed by the parochial limited vision of the State.”. It further invoked principles of fraternity to strike down the statute being contrary to foundational premises of the Constitution, as it treated the non-residents of Haryana as “secondary citizens”. While doing so, there was misplaced reliance on US SC Judgments dealing with provisions which were held violative and discriminatory on account of race, since the HC believed that the Indian Constitution borrows heavily from the USA. This chain of reasoning is flawed, since the HC ought to have examined the question of who were intended beneficiaries of the law and whether such a classification was constitutionally justified, by applying the twin tests of Article 14.

The HC concluded on the question of classification, by stating that the State cannot negatively discriminate against those who don’t belong to the state, based on the reasoning that “once there is a bar under the Constitution of India, we do not see any reason how the State can force a private employer to employ a local candidate,” without emphasising how exactly the Constitution bars reservation policies on the basis of domicile. The HC thus erred in not deciding where the appropriate balance lies between reasonable restrictions of A.14 and 19 freedoms and the power (or rather the extent of power) of states to legislate on domicile quotas. 

Conclusion

The HC concluded its analysis by stating that the “respondent-State has directed the private individual to do what itself is barred from under the Constitution.” Such an analysis is erroneous, since the HC failed to explain what exactly is barred under the Constitution. By not engaging with how the law is disproportionate, the HC followed a rather interventionist standard of review, which is in contrast to the general deferential standard that constitutional courts adopt on matters of economic and social policy. By not deciding on the fundamental question of whether reservations in the private sector are constitutional, the HC has failed to address the elephant in the room. Ambiguity about the application of the corresponding tests to decide the legality of reservation in the public sector remains. This lacuna is bound to persist in the future, when similar laws are interpreted.

Guest Post: Distributive Justice and the EWS Judgment

[This is a guest post by Faizan Ahmad. The author thanks Anurag Bhaskar for providing some of the non-open access academic material used in this post.]

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Much has been said about the Supreme Court’s decision in Janhit Abhiyan v Union of India  on reservations for ‘Economically Weaker Sections’ [EWS]. So far, the framing of equality in the majority, as well as dissenting opinion, and some judges’ observations on the basic structure doctrine have been questioned.

All the judicial opinions, including the hailed dissent, are united in the embrace of an income-based exclusive criterion, in principle, as a permissible form of reservations. This post shows how the court, in upholding the EWS reservations has not engaged with some indispensable considerations under its basic structure enquiry. I also discuss two more overlooked, but equally serious and concerning ideas in the judgment: the court’s invocation of ‘efficiency’ and Article 335 as a limit to reservations, and the intention to fix a time limit on reservations.

The Basic Structure Enquiry

Similar to the framing in Nagaraj, the court begins by noting that a constitutional amendment can be challenged only on the basic structure doctrine. [Maheshwari J ¶33, Nagaraj ¶28] Accordingly, the question is whether reservations based on an individual income criterion would violate the basic structure. This is indeed an uphill task. If it were not a constitutional amendment, one could simply argue that it violates articles 15(4) and 16(4). On the other hand, a constitutional amendment would not, per se, be bound by the requirements of already existing reservation provisions i.e., Articles 15(4)/16(4). But does that mean that the purposes and essential principles behind reservations are irrelevant in its basic structure enquiry?

Before addressing this question, some aspects of the basic structure enquiry need to be highlighted.

First, examining whether an amendment violates basic structure is ultimately an exercise of abstraction and depends on what level of abstraction the court accepts. Courts seem to have adopted a deductive approach where a specific provision/measure is tethered to a more general abstract principle. For instance, RC Poudyal v. UoI  involved tethering the “one-person-one-vote” principle to ‘representative democracy’. Yet, establishing this connection as a critical one was not sufficient. It had to be shown how a deviation ‘damages’ or ‘destroys’ an abstract concept of representative democracy. Since these concepts are always on a high level of abstraction, it essentially becomes akin to the Ship of Theseus puzzle, where we can never tell at what point something actually destroys or alters the identity [of the Constitution]. No wonder most basic structure challenges fail. These problems make scholars and lawyers wary of the basic structure ‘dilemma.’ For now, we are stuck with a dilemma which cannot be escaped (contrary to a suggestion here), but can only be navigated.

Second, some suggestions to overcome this hurdle (also argued by one petitioner), are along the lines of the following deduction:  basic structure >> equality >> substantive equality>> reparative justice >> reservations >> based on social and class backwardness, underrepresentation etc. Simply put, reservations not based on certain essential criteria will no longer be reparative justice, which will in turn destroy/alter the identity of substantive equality, which is part of the basic structure.

Bhatia has pointed out that because of the polysemous nature of these abstract principles, it is difficult to sustain a basic structure challenge. He is unconvinced because there may be various visions of equality and “basic structure does not bind Parliament to any particular conception of equality and social justice.” It is very difficult to disagree but there is also discomfort in endorsing that the absence of a fixed meaning is a licence for the Parliament to get away by labelling any measure as enabling equality, and that any attempt to constrain this is judicial dictation of policy. I offer no roadmaps or answers, and in the next few paragraphs, I attempt to illuminate some possibilities by returning to how the court dealt with a similar dilemma in the NJAC case. 

In the NJAC case, it was argued that the 99^th Amendment is only aimed at enabling accountability, transparency etc. in judicial appointments. The independence of the judiciary being a basic feature was undisputed. For the court, “the only issue [was] what is the permissible procedure or mechanism which would ensure establishment of an independent judiciary.” The petitioners argued that the independence of the judiciary is a ‘component’ of the basic structure of the Constitution and the process of appointment is an essential ‘element’ of such ‘component’. Could it then be said that this a question of what particular conception, i.e. the manner of judicial appointments, which the parliament is unbound to choose as long as it appeals to the abstract idea of ‘independent judiciary’? For the Union, yes, and this is how it seemed to defend the amendment. There too, apart from the original constitutional provisions, there was nothing explicit to show that parliament was bound by a particular conception of judicial independence. Confronted with this reality, the interpretation of the phrase ‘consultation’ became the lynchpin of the case, and the court consciously picked one interpretation over the other by relying on the Constituent Assembly Debates about how judicial appointments were originally envisioned.

Hence, while assessing whether a ‘conception’ or micro-level element is a part of the basic structure, courts will sometimes have to prefer one particular conception/means over the other, after assessing how the interpretation affects the broader principle enshrined within it.

If we are to accept that the Parliament has a free hand as long as it frames its justification of the amendments as merely an ‘alternative route’ or ‘enabling’ mechanisms towards abstract constitutional values, we are left in a state of limbo. A sample of this notion resonates throughout the majority opinions, in the over-significance accorded to the idea that ‘enabling provisions’ are excluded from the basic structure.

One response is given to us by Bhat. J:

The enabling provision in question’s basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court’s inquiry, therefore, cannot stop at the threshold, when an enabling provision is enacted. Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. ….To view a newly added provision as only “enabling” can be an oversimplification in constitutional parlance. The court’s concern is not with the conferment of power per se, but with the width of it, lack of constitutional control, and the direct impact it can have on principles constituting the basic structure [¶157-9].

As long as we hold on to the idea that certain constitutional goals such as equality were to be realised through certain minimum guarantees enumerated in the text of the Constitution, we are, in effect, subscribing to a particularity: that not all pathways lead to realising that goal of equality. On the contrary, some may hinder its achievement. To be sure, basic structure challenges ought not to be simply challenges against misguided policy. The point is, and to rephrase Malvika Prasad’s statement, the ‘why’ and ‘for whom’ questions to preserve substantive equality/affirmative action must be equally central to the basic structure as the ‘how’ and the ‘what’ questions.

Having clarified this, I will now demonstrate that the context and intention of reservations are not irrelevant to the basic structure enquiry.

The Relevant Considerations

Context, intent, and purpose become important in a basic structure review. As it has been pointed out, “for determining whether a particular feature of the Constitution is a part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial.”  [ Indira Gandhi v. Raj Narain, affirmed in Nagaraj ¶30] While taking note of how reservations have been placed in Article 16, the Nagaraj court noted: “We have to go by what the Constitution framers intended originally and not by general concepts or principles.”

Secondly, the court also referred to Article 335. Does this mean that the constitutional amendment was bound by Article 335? Surely not. Nor did it say that Article 335 is a part of the basic structure. Rather, the court considered Article 335 relevant for its basic structure analysis of reservations. Accordingly, reservations as a facet of equality have to be understood “in the context of the placement of an article which embodies the foundational value of equality.” [ Nagaraj ¶30] 

Indeed, the 103^rd Amendment would not strictly be bound by the particularities of Articles 16(4) and 15(4); but to interpret whether the amendment is within the constraints of the broader principle of equality- the purpose of reservations, its underlying principles, and target beneficiaries need to be considered. That cannot be done in isolation without considering Articles 15(4) and 16(4). This was seemingly understood by the Nagaraj court when it called backwardness and inadequacy of representation as “constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse” [ ¶122], heavily relying on Indra Sawhney . Likewise, the observations in Indra Sawhney and NM Thomas, confirm that there is a clear exclusion of economic criteria (discussed here), not specifically limited to Article 16(4), but in deciding the essence of rights under Article 16(1) as a facet of substantive equality.

The Court’s Engagement

So far, I have shown the considerations that are indispensable to the court’s basic structure enquiry. Yet, the engagement and indulgence that the court makes are superficial and inadequate, especially when it considers the basic structure the only anvil on which the amendment is to be tested.

Maheshwari. J acknowledges that reservations are a form of compensatory discrimination which leads to substantive equality. [¶48] Articles 15 and 16 are facets of equality. [¶52.2] However, in his view, reservation is not a basic feature because it is an “exception to the general rule of equality”. [¶56] None of the various arguments regarding the alteration of the identity of substantive equality are engaged with (i.e., the width and identity test propounded in Nagaraj).

We know from NM Thomas and Indra Sawhney that framing reservations as an exception to equality is incorrect. For Iyer. J “reservation is but an application of the principle of equality within a class and grouping based on a rational differentia.”  [ NM Thomas at ¶162]  We are provided with two more broad reasons for upholding EWS reservations in principle:  that (i) the contours drawn in Indra Sawhney are irrelevant for this kind of new affirmative action based on income, and (ii) that such reservations are permissible under Articles 15 and 16, since it is based on the principle of ‘distributive justice’ under Article 46. [¶72-74 Maheshwari. J]

Once we agree that the context and purpose of reservations are relevant in deciding the validity of the EWS reservation, we can then identify three cumulative requirements.  Firstly, that the EWS is a class; secondly, such a class is ‘backward’; and thirdly, that the backward class is not adequately represented. 

Class v. Individual

Kartik Kalra has already suggested that the court should have undertaken a homogeneity analysis, i.e., a backward class receiving reservations must be similarly situated, homogenous and precisely delineated. However, the question is not whether the EWS has characteristics of homogeneity, but whether the EWS is a class at all. One of the petitioners contested this aspect by arguing that ‘PEWS are not a “class” but are a “section” comprising of all classes except the backward who are specifically excluded. This converts a class-based remedy to an individual one.’ This distinction is not engaged with in any of the opinions. 

On the other hand, Indra Sawhney understood backwardness in class terms. As per Sawant. J: 

… backwardness has to be a backwardness of the whole class and not of some individuals belonging to the class, which individuals may be economically or educationally backward, but the class to which they belong may be socially forward and adequately or even more than adequately represented in the services…It is further difficult to come across a “class” (not individuals) which is socially and educationally advanced but is economically backward or which is not adequately represented in the services of the State on account of its economic backwardness. [¶482]

This was a hurdle in the way of the court’s justification of an individual-based criterion of income. Sidestepping this, Maheshwari J. found that “the said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section.” [¶72] 

Here, the court seems to be saying that these principles apply to reservations under Articles 15(5) and 16(4) only and are inapplicable to a new clause added on a new ground for affirmative action. As argued in the previous sections, these articles are essential and relevant for its basic structure enquiry.

When a reservation not covered under Article 16(4) is to be made, it must still cater only to ‘classes’. [Indra Sawhney at ¶246] The observations in Indra Sawhney draw the contours of the target group for reservations, which cannot be expanded through a different route. In other words, if Article 16(1) is a general principle and Article 16(4) an enunciation of substantive equality, then, what is prohibited under the former cannot be smuggled back in by inserting Article 16(6).  It defies the very idea of affirmative action intended by the reservation provisions (Articles 15 and 16) because the common thread that runs through them is the idea of class backwardness and under-representation. The sine qua non for providing reservation is the inadequate representation of the class concerned in the State services, and it is from this underrepresented class that a backward class is to be culled out. [ Indra Sawhney, ¶362] The question then, is whether the individuals part of the EWS are part of communities that are under-represented. Within the 8-lakh income bracket proposed under the EWS, these are mostly forward castes or castes that are already represented in the state, as shown by various studies. 

Defenders of the amendment relied on Nagaraj to argue that the ‘basic structure doctrine’ prevents only the destruction of the core identity of a principle such as equality, and not the enablement of the principle through a different route. On the contrary, Article 16(6) is not an enabling provision or a different route to realising equality. Rather, it modifies the rationale and targeted beneficiaries of reservations. In this sense, it alters the identity of the equality code, which is part of the basic structure ( see Malvika Prasad’s post, arguing that group-based reservations are essential to the identity of equality).

‘Compensatory Discrimination’ But for Whom?

The plurality opinion presumes that reservations are an ‘exception’ to equality, while nonetheless articulating the equality code in the substantive equality framework [see Ayan Gupta’s post]. The agreed principle is that substantive equality can be realized through ‘compensatory discrimination.’ [¶ 48] This means as a form of reparations, exclusive benefits to a target group can be granted by the exclusion of advantaged groups (that did not suffer discrimination). [¶82.1] But, for this to be a permissible discrimination of the ‘compensatory’ kind, it is obvious that the target beneficiary group must be one that has suffered historical discrimination/oppression, for which the compensation is being made. In other words, the validity of these benefits hinges on which target group one thinks deserves this compensation. But the answer to this question is already assumed – in the court’s view, EWS is a deserving category entitled to reservations simply because other backward classes have it.

 The court notes:

Suffice it to observe that the amendment in question is essentially related to the requirements of those economically weaker sections who have hitherto not been given the benefit of such an affirmative action (particularly of reservation), which was accorded to the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWS reservation from the standpoint of backward class versus forward class is not in accord with the very permissibility of compensatory discrimination towards the goal of real and substantive justice for all. [ ¶75]

The petitioner’s objection that compensatory discrimination cannot be for the forward castes, is frowned upon. For Maheshwari. J compensatory discrimination is meant for all, and in a language tacitly implying the return to the formal equality conception, it does not matter whether you are forward or backward. 

Reservations for the Poor as ‘Distributive Justice.’

As has previously been argued here, reservation is envisaged as a reparation for identity-based historical oppression which cannot be equated with poverty. Knowing that it would be impossible to justify the EWS as a historically discriminated class entitled to reparation, the last straw the court is able to clutch on to is the ‘principle of distributive justice’. [¶74.1]  The court’s cited judgment [Lingappa Pochanna Appelwar v. Maharashtra 1988] that it relies on to define ‘distributive justice’, pertained to a challenge to the Maharashtra Restoration of  Lands to Scheduled Tribes Act, 1974 which provided for the restoration of possession of agricultural lands owned by tribals which had been transferred to non-tribals.

Justifying the enactment, the court noted:

16. . The present legislation is a typical illustration of the concept of distributive justice….Our Constitution permits and even directs the State to administer what may be termed ‘distributive justice’. …Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society…. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements.

In the subsequent paragraphs, [ ¶74.1.1] Maheshwari. J concludes “the wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income.” 

Clearly, we can see the court has now proceeded to equate reservations as a poverty alleviation measure, a characterisation that the Indra Sawhney court categorically rejected. [Sawant. J, ¶482] To liken a land redistribution enactment with the EWS, shows the court’s limited understanding of ‘distributive justice’ and its conflation with remedial justice in the form of reservations. As we saw above, distributive justice is about the reallocation of wealth, property, and material resources. Neera Chandhoke argues that there is a difference between projects of ‘distributive justice’ that aim to reorganise ownership of economic resources equitably, and ‘remedial justice’ that recognises historical injustice and ensures benefits to a doubly disadvantaged community.  Reservations can provide reparations but cannot remedy deprivation and inequality, because remedial justice cannot replace redistributive justice.

This characterisation is implicit in the distinct purposes of Article 46 and reservations under Article 16(4), which was acknowledged in Indra Sawhney: 

… individuals belonging to the weaker sections may not form 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 a 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). Thus, not only is the concept of “weaker sections” under Article 46 different from that of the “backward class” of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true. [Sawant. J ¶481]

Secondly, any kind of affirmative action measures under Article 46 will still be subject to the consideration of backwardness:

Article 46 emphasises the overriding responsibility and compelling interest of the State to promote the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes…This principle must necessarily guide the construction of Articles 15 and 16, All affirmative action programmes must be inspired by that principle and addressed to that end. Whether such action should be in the nature of preferences or by recourse to reservation is a matter on which the State must, by an objective evaluation of the degree and nature of backwardness and with reference to other constitutional principles, come to a conclusion. [ Indra Sawhney ¶300]

Distributive justice may have contested meanings, but it cannot be used as a blanket justification for interfering with the purpose of reservations. These justifications were discussed and rejected in Indra Sawhney, yet the observations are unengaged within Janhit Abhiyan. Even within an understanding that accords reservation the status of distributive justice, it can only be for those communities that have been historically disadvantaged socially. In any case, ‘minimizing income equality’ is not a legitimate aim for the purposes of Articles 15 or 16.

The Ghost of Efficiency

The Supreme Court has, in the past, considered the ideas of ‘efficiency of administration’ (used in Article 335) and ‘merit’ as opposing propositions [Devadasan v. Union of India ¶32]  and thus, Article 335 to be a limitation on Article 16(4). [Nagaraj  (¶ 108)] The Janhit Abhiyan majority, observing that “Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. [¶ 37.9, ¶92.5, Maheshwari. J] resurrects this erroneous perception. On the contrary, the Constituent Assembly Debates on the drafting of Article 335, (then Draft Article 296) reveal that it was not a limitation on the power to make reservations under Article 16(4), i.e., then Draft Article 10(3).

Hirday Nath Kunzru while discussing the scope of draft Article 10(3) noted that while Draft Article 10(3) used the term ‘backward classes’, Draft Article 296 used the phrase minorities. Minority communities could avail reservations only if they were found to be “backward”. Ambedkar then clarified that representation of SCs, and backward classes was to be specifically addressed under Article 10(3), while Article 296 made a reference for the consideration of the claims of minorities for reservations in appointments to services. In other words, that these served different purposes and Article 10(3) was independent of Article 296. [CAD, Vol. VII, Nov.1948]

Later, the Sardar Patel-led Advisory Committee claimed that after consultation with minority leaders, it was agreed that minorities would not be considered for reservations. The minority members protested that this agreement was only about waiving claims to reservations in the legislature, and not in employment.  The Drafting Committee then replaced the phrase ‘minorities’ with the phrase- ‘Scheduled Castes and Scheduled Tribes” in Article 335.

Some confusion arose from Article 320(4) which removed the need to consult the UPSC with respect to “the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335”. The intent behind this was self-explanatory: to disallow the UPSC to create obstacles for reservations. Kunzru explained that under Article 335, the State will consider the claims of SCs and STs, but it is  Article 16(4) that empowers the State in clear and “express terms”. Thus, while Article 16(4) equipped the State to make reservations for SC/STs, Article 320 was its consequence. Likewise, when Brajeshwar Prasad moved an amendment that “the maintenance of efficiency of administration shall be the only consideration” in relation to “appointment to services and posts in connection with the affairs of the union or of a state”,- it was rejected by the Assembly. [CAD vol. X, 14, Oct 1949] 

Accordingly, Anurag Bhaskar has argued that the Constituent Assembly “never made Article 16(4) subject to Article 335 or 320, rather accepted it as a stand-alone and overriding provision”. In Ambedkar’s view, representation was essential to efficiency. It was a metric of ‘good governance’ not despite the representation of backward castes, but because of their representation. Thus, ‘efficiency of administration’ as mentioned in Article 335 was not envisioned to be a limitation to reservations.  This was later echoed in BK Pavitra II, which   Janhit Abhiyan court avoids citing. The Supreme court in BK Pavitra (II), noted:

… efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.

This has also now been confirmed by various studies that reservations in employment do not dilute efficiency in any way, but rather enhance it.

The Ten-Year Time Limit

The second manner in which the Janhit court reproduces the stigma of reservations and caste is by reiterating the myth of the time limit on reservations in Article 16.

Pardiwala. J claims that, “The idea of Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years.”  [ ¶190] No reference or context is given for this statement by Ambedkar.  Similarly, Trivedi. J does not shy away from claiming that “at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole”, and  the phrase “transformative constitutionalism”, is added for good measure.

Previous court decisions have also shown their inclination towards an endpoint in reservations. In K.C Vasanth Kumar, as per Desai. J “reservation must have a time span otherwise concessions tend to become vested interests”. Later, in Ashok Kumar Thakur v Union of India  the court noted:

Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently… Any provision for reservation is a temporary crutch…

The time limit myth arises from the Poona Pact negotiations, where Gandhi and Ambedkar could not agree on the time period after which a referendum on separate electorates for depressed classes could be held. After much deliberation, the final clause stipulated that the reservation of seats in provincial and central legislatures “shall continue until determined by mutual agreement between both the communities concerned in the settlement”, i.e., Caste Hindus and the Scheduled Castes. This fixed time limit was not to end reservations in joint electorates, but rather an initial limit after which the position of joint electorates with reservations would be merely reconsidered. 

However, after the partition, some leaders in the Constituent Assembly sought to do away with political reservations for all minorities. When Ambedkar walked out of the proceedings, the Patel-led Advisory Committee reconsidered its position. It carved out an exception for SCs, noting “the peculiar position of the Scheduled Castes would make it necessary to give them reservation for a period of ten years”. As Ambedkar was outnumbered, this later went to become Article 334, despite some members objecting. Monomohan Das pointed out that if these safeguards were to cease in ten years, it could only be “after consideration of the situation then of the Scheduled Castes, and the Scheduled Tribes”.  Although, the Constituent Assembly fixed a time limit of ten years on political reservations and only in that context, Ambedkar himself prescribed the method of the constitutional amendment to extend this time limit; if the situation of SCs and STs did not improve (for Bhaskar’s full discussion see here).

On the other hand, the Parliament debates show that when the first constitutional amendment of 1951 inserted Article 15(4), there was no discussion on the time limit. Similarly, there was no discussion during the drafting of Article 16(4), either. Thus, there is nothing to suggest that reservations in education and public employment were intended to be abolished after ten years.

Conclusion

The net effect of the judgment is that it reproduces the timeless harangue against reservations by showing a false conflict between reservation and ‘efficiency’, by legitimising the myth of the ten-year time limit, and packaging a measure largely benefitting the already represented forward castes as a form of distributive justice. These need not be seen as mere “intellectually suspect, conceptual confusions.” It is the judicial enablement of an “upper caste revolt“:  a class which has historically frowned at reservation for being contrarian to merit, now claiming victimhood, through an individualised income basis. 

Guest Post: Schrodinger’s Substantive Equality – Conceptual Confusions and Convenient Choices in Justice Maheshwari’s Plurality Opinion in the EWS Case

[This is a guest post by Ayan Gupta.]

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The Supreme Court (SC) in its split verdict in Janhit Abhiyan v Union of India upheld the 103^rd Amendment to the Indian Constitution. The amendment permits states to introduce reservation up to 10%, on top of already existing reservations, for “Economically Weaker Section [EWS]” of the citizenry. The qualifications for being classified as EWS are notified by the Govt separately and currently include persons with a family income of less than 8 Lakhs per annum.

At almost 400 pages, the judgement comprises of four opinions. The plurality opinion of Maheshwari J., along with concurrences from Trivedi and Pardiwala JJ., find consistent with the basic structure of the Constitution (a) that reservations can be grounded in solely economic basis and (b) that such reservation can be introduced to the exclusion of Scheduled Castes, Scheduled Tribes, and Other Backward Classes. The dissent by Bhat J. (joined by Lalit CJ.) disagrees explicitly on the second point regarding the exclusion of SC, ST, and OBC beneficiaries.

Keiran Correia has already provided an insightful analysis on the dissenting opinion of Bhat J, while Kartik Kalra has likewise examined the majority judgments. In this post, I focus specifically on Maheshwari J.’s plurality opinion. I argue that the decision highlights a severe lack of conceptual clarity concerning the nature and role of reservations within the Indian Constitution. 

Clarifying Indra Sawhney: The Task at Hand

The reservation jurisprudence of the SC has always been puzzling, with the Court often moving back and forth between the choices it makes. Nonetheless, since State of Kerala v NM Thomas, it is generally accepted, at least doctrinally, if not in practice, that article(s) 15(4) and 16(4) are not exceptions to the Constitution’s equality code, but emphatic restatements of it; in other words, the Equality Code embodies a vision of substantive equality, of which Article 16(1) (for example) is the general statement, and Article 16(4) a specific application.

That is not to say that this notion has not had its fair share of resistance. In Indra Sawhney, a 9-Judge bench of the SC, despite affirming NM Thomas, upheld MR Balaji’s 50% ceiling on reservations. This position reflects a “normative tension” in Sawhney, where on the one hand, the Court commits to understanding reservations as a facet of equality, and on the other, holds that the equality of opportunity function rationale of reservation must be balanced against the right to equality of everyone else.

Affirmative Action as a Facet of (In)Equality

Indeed, this tension is the exact conflict that Janhit Abhiyan required the Court to resolve. In having to decide whether SC, ST and OBCs can be excluded from the scope of EWS reservations, the Court would have had to deal with the internal tension that Sawhney presented before it. It would have had to reason whether exclusion of backward classes within a substantive equality framework could be balanced against the equality claims of “everyone else.”

Unfortunately, as we see in the plurality opinion, the Court undertakes no such exercise. Instead, it begins with the presumption that reservations necessarily do function as an exception to the equality. Thus, after articulating the issues it is to decide, in para 31.1 the Court says:

31.1. All these points are essentially structured on three important components namely, (i) the general rule of equality enshrined in Article 14 of the Constitution; (ii) the reservations enabled in Articles 15 and 16 as exception to the general rule of equality; and (iii) the doctrine of basic structure that defines and limits the power of the Parliament to amend the Constitution.

However, despite this presumption, the Court does not reject substantive equality-oriented interpretation of the Equality Code. Though in para 44, the plurality articulates the equality function of the constitution in the classic form of “equals must be treated equally while unequals need to be treated differently,” it follows up in the very next paragraph by noting that in Indian Constitutional Jurisprudence has “…held the guarantee of equality to be substantive and not a mere formalistic requirement” [para 46].

The plurality’s articulation of the Constitution’s equality, in these two paragraphs, highlights the first signs of the conceptual confusion that plagues the reasoning that follows. In the very next section, titled “Affirmative Action by ‘Reservation’: Exception to the General Rule of Equality,” this confusion becomes glaringly visible.

The Court begins by reasoning that the state is “tasked with affirmative action” as India’s “multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities” [para 48]. It goes on to characterize reservations as the “basic gateway to tread the path of all-around development” [para 52.1]. Yet, it concludes the section by stating that

56. However, it need be noticed that reservation, one of the permissible affirmative actions enabled by the Constitution of India, is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated…

Interestingly, the Court does cite NM Thomas to say that Article 14 embodies the ”the generic principle of equality (as genus) and Articles 15 and 16, [enact] the facets of general equality (as species)” [para 52]. Yet, it does not engage with, or even acknowledge, the impact of this statement (and the Thomas decision) on its presumption that reservations represent an exception to equality since Thomas had explicitly held, and Indra Sawhney had explicitly reaffirmed, that reservations do not function as exceptions to equality!

The rest of the opinion (including this particular section) offers no reasons for why reservations have been characterized as an exception to the “general rule of equality.” It is important to note that the Court does not engage at all with the decisions in NM Thomas and Indra Sawhney in so far as they question the nature of reservations within the Constitution’s equality code.

It begs to be asked, then, if the Court is clear in its determination that reservations function as an exception to the general rule of equality, why does it articulate the equality code’s function as a substantive equality feature? Why does it characterise reservations as exceptional and yet justify their presence on a substantive equality principle?

The answer to this question perhaps lies in the plurality’s need to justify reservations based solely on economic determinant(s), a classification that did not exist prior to the amendment, and at the same time find reasons for the exclusion of SC, ST and OBCs from the scope of the new amendment.

In having to justify reservations to the exclusion of caste and group identities, the plurality takes resort to the space provided by substantive equality formulations of the Constitution. For instance, in para 63, it notes that

63. … this Court distinctly pointed out that the equality clause in the Constitution does not speak of mere formal equality but embodies the concept of real and substantive equality, which strikes at inequalities arising on account of vast social and economic differentials.

Indeed, the Court follows up by noting that in conversations concerning substantive equality, economic justice has acquired “equal focus” alongside “the principles of social justice” [para 65]. In articulating this substantive equality argument, it goes so far as to say

65. …[a]ny civilized jurisdiction differentiates between haves and have-nots, in several walks of life and more particularly, for the purpose of differential treatment by way of affirmative action.

Thus, on the one hand, the Court refuses to acknowledge that substantive equality articulations do not understand affirmative action policies as exceptions to equality. On the other hand, it uses the language of substantive equality to reason that the Constitution not only permits, but demands [para 79], that economic poverty be recognized as a group/ class of its own.

It is important to note, in this context, that the Court’s decision to allow the breach of the 50% ceiling for EWS reservations must necessarily result from a substantive equality conception of the Constitution. The introduction of the limit was based on the need to “balance” equality of opportunity and the right to equality of “everyone else.” It functions on the assumption that reservations are an exception to the “general principle” of equality, and therefore, cannot exceed 50% as exceptions cannot swallow the whole.

Thus, though the stated reasoning for permitting a breach of the limit is that it concerns Article(s) 15(4) and 16(4) and is irrelevant for EWS reservations, which form a separate category of its own [para(s) 93 and 94], any breach of the 50% limit would necessarily require substantive equality as an underlying philosophical justification. Otherwise, as is the case presently, the Court is faced with a situation where the balance is tilted in favor of one group against another, and the general rule of equality would be defeated by more than 50% reservations. This would be a result inconsistent with the vision of formal equality. Once again, this is a tension that remains unaddressed in the plurality decision.

Conclusion: A Constitutionalism of Convenience

These two contradictory choices represent, to me, a constitutionalism of convenience. In creating this conceptual confusion, the plurality made space for envisioning reservations for a group otherwise not entitled to it without having to include already existing beneficiaries of affirmative action. In essence, on both questions, first, concerning validity of economic reservations and, second, concerning exclusion of SC, ST, OBCs from such reservation, the Court used these competing visions of equality to justify the conclusion it chose.

In answering the first question, the Court held that since reservations function as an exception to equality (the formal vision), it cannot be “…regarded as such an essential feature of the Constitution that cannot be modulated” [para 56]. In answering the second question, using substantive equality’s commitment to acknowledging and countering structural injustice (substantive vision), it held that that ”..but for this exclusion [of SC, ST, and OBCs], the purported affirmative action for a particular class or group would be congenitally deformative” and therefore, the exclusion would not violate the basic structure of the Constitution [para 79].

In making these choices, the Court refuses to acknowledge the contradictions inherent in its approach. The approach is intellectually suspect, and adds to the conceptual confusions in a jurisprudence already plagued by lack of clarity across its various aspects.

Indeed, even the Court’s use of substantive equality as a bridge for creating exclusions without considering the interaction between caste and poverty only serves to highlight its evasion in refusing to engage with the complete consequences of the concepts and choices it employs. Finally, by failing to engage with the normative tensions in Indra Sawhney, the Court refuses to perform the job it was tasked with of clarifying the nature and place of reservations within the equality code.

On a parting note, I also wish to highlight an interesting observation by the Court that deserves more exploration. In para 97, the Court notes that the extent of reservations made under the EWS quota may be “determined with reference to the relevant analysis of the material data justifying a particular percentage.” In doing so, it brings forth the ghost of Nagaraj. In Nagaraj, the SC held that the State must submit quantitative data on backwardness of the beneficiaries and impact on administrative efficiency for granting reservations under Article 16(4A).

In doing so, it made granting such reservations difficult especially as it provided little to no guidance as to what such data must indicate. Though the EWS reservations do not have backwardness and efficiency related qualifications, it will be interesting to see the challenges that follow based on lack of or a need for data justifying the reservations granted (and the many methodological confusions that categorizing “EWS” would bring). Would this lead the Court away from the approach in data-focused approach in Nagraj or would it only solidify Nagaraj’s presence remains to be seen.

Guest Post: Escaping the Basic Structure Dilemma – On the Majority Judgement(s) in the EWS Reservations Case

[This is a guest post by Kartik Kalra.]

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This week, the Supreme Court delivered its judgement in Janhit Abhiyan v. Union of India, holding constitutional the 103^rd (Amendment) Act, 2019, which provides for reservations in public employment and education for economically weaker sections (“EWS”) of citizens other than Scheduled Castes (“SC”), Tribes (“ST”) and Other Backward Classes (“OBC”). In adjudicating the constitutionality of the Amendment, it split the question into three parts: the constitutionality of the use of solely economic criteria to reserve seats under Articles 15 and 16; the constitutionality of the exclusion of SC, ST and OBC candidates from the category of EWS; and, the constitutionality of the breach of the 50% ceiling on reservations. This piece concerns the first question: the constitutionality of a solely economic basis to determine the eligible class for reservations.

The Court’s engagement with this issue becomes significant due to the prior, enduring consistency of its jurisprudence with respect to the necessity of a homogenous, precisely delineated class constituting the eligible recipient of reservations under Articles 15 and 16. Indra Sawhney v. Union of India explicitly held that “a backward class cannot be determined only and exclusively with reference to economic criterion” (¶799), and Janki Prasad Parimoo v. State of JK considered income levels to be incapable in constituting a homogenous class eligible for reservations (¶36). Dayaram Verma v. State of Gujarat struck down income-based reservations on the same grounds (¶29.3).

In this piece, I argue that the Court’s deviation from well-established doctrine on the necessity of a homogenous, precisely delineated class as the recipient of reservation benefits, while motivated by a desire to avoid constitutional stultification, ignores a host of creative ways out of the basic structure dilemma. I evaluate the reasoning used by the Court in circumventing the application of prior doctrine on Articles 15/16, and argue that Maheshwari J. succumbs to the basic structure dilemma while Pardiwala J. misrepresents Chitralekha v. Union of India in order to demonstrate its convergence with the 103^rd Amendment. I also propose that the Court could have employed a constrained declaration of constitutionality like it did in M. Nagaraj v. Union of India, prescribing the mode of determination of the EWS class eligible for reservations based on its reasoning in Chitralekha. In addition, I also propose sub-classification of the EWS category within the Chitralekha criteria to be an additional weapon in the Court’s arsenal, one that it could have invoked without succumbing to the basic structure dilemma.

EWS and the Application of Doctrine under Article 16

In addressing the question of prior doctrine forbidding solely income-based reservations due to the absence of an identifiable class, Maheshwari J. proposes that Articles 15(6) and 16(6) create a new class altogether, one that isn’t subject to that doctrine in the first place:

72. …The said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section.

On the other hand, Pardiwala J. uses Chitralekha to hold that there is no real deviation from doctrine:

70. …Indra Sawhney (supra) holds that the Chitralekha (supra) propounded occupation-cum-means test can be a basis of social backwardness even for the purposes of Article 16(4). Article 15(6)(b) Explanation defining EWS could be said to be fully compliant with this norm.

Trivedi J. agrees with Maheshwari J., indicating her belief that EWS is a separate class altogether, one to which prior doctrine on Articles 15/16 has no application.

Given the exclusion of the classes under Articles 15/16(4), it is true that EWS will be a separate class. The question, however, is how this class will be identified, which strikes at a deeper question that Maheshwari J. assumes the answer to: the applicability of prior doctrine to assess reservations for any class under Article 16, which broadly mandates the existence of a homogenous class of recipients. In case this doctrine is inapplicable, then Articles 15(6) and 16(6) can function as a self-contained code with radically different philosophies and principles as compared to the rest of the equality code. If not, however, then a deviation from prior doctrine must be examined in greater depth.

State of Kerala v. NM Thomas approved Subba Rao J.’s dissent in T. Devadasan v. Union of India, holding that Article 16(4) is an emphatic restatement of the equality principle under Article 16(1) instead of being a deviation therefrom (¶78). All doctrine of Article 16 was imported to Article 15 in Ashoka Kumar Thakur v. Union of India (¶116), and Nagaraj held the entirety of Article 16 (and by implication, Article 15) to be restatements of the basic equality principle under Article 14 (¶102). There is, therefore, a degree of coherence across Articles 14, 15 and 16, and any tinkering must bear fidelity to what the equality code stands for and the means through which it is effectuated. While an author has previously argued here that dismantling caste-based structures of oppression and a reparative mode of reservations is a part of the basic structure, I do not take this burden. Even if one doesn’t subscribe to the reparative underpinnings of reservations (as none of the judges in the majority do), the mode of determining the classes eligible for reservations that has entrenched itself in Articles 15 and 16, and by implication in Article 14, cannot be ignored.

Case law on Articles 15 and 16, even including M.R. Balaji v. Union of India, has insisted on the necessity of a precise and similarly situated class that can receive reservations. Chitralekha held an occupation-cum-income based test to be accurate enough to determine backwardness (¶15); State of Andhra Pradesh v. P Sagar held the meaning of “class” under Article 16(4) to signify homogeneity, discounting the possibility of labelling a caste per se backward and necessitating the production of educational and economic criteria that would signify its backwardness (¶7); and T Murlidhar Rao v. State of Andhra Pradesh struck down the inclusion of the Muslim community in Andhra Pradesh within the OBC list because of its dissatisfaction with the accuracy of the report documenting their socio-economic status, which included both well-off and disadvantaged Muslims (¶73). More recently, Dayaram Verma reaffirmed the criteria in P. Sagar, holding that homogeneity is the sine qua non for determining the class eligible for reservations, and which cannot be achieved using economic criteria alone:

29.3 As the economically weaker sections among unreserved category cannot constitute as homogeneous group for the purpose of reservation and such reservation will not withstand to the scrutiny of twin test under Article 14 of the Constitution of India. Further, the economic criteria being fluctuating issue, the same cannot be the basis for any classification for the purpose of affirmative action for admission to educational institutions and while filling up the posts in the services under the State.

Case law, therefore, maintains that a class receiving reservations must be homogenous and precisely delineated. While Articles 15/16(4) use the term “backward” to define the eligibility of the class receiving reservations, Articles 15/16(6) use the term “economically weak”. For the former, the Court has repeatedly asserted the necessity of all constituents of the class being similarly backward. For the latter, therefore, the Court had the option of asserting the application of prior Article 16 doctrine necessitating a homogenous EWS class, one that is broadly similar in a set of indicators signifying economic capabilities. Does the EWS class possess a similarity in variables constituting economic weakness (other than income), such as, inter alia, occupational mobility, job security, blue v. white collar work, and the availability of health insurance? This is where the Court could have stepped in, mandating that the EWS class be determined in accordance with well-established doctrine that necessitates a homogenous class of recipients. This would not require the invocation of the basic structure test at all, for it would merely be an exegesis of the term “economically weak” under Articles 15/16(6) in the manner that Sawhney did for the term “backward” under Articles 15/16(4). The Court could have undertaken a similar exercise here, holding the Amendment constitutional while limiting its contours to a well-defined class.

Lastly, it must be noted that while cases like Sawhney, T. Murlidhar Rao and Dayaram Verma concerned classes under Articles 15/16(4), N.M. Thomas and Janki Prasad Parimoo concerned affirmative action under both Articles 16(1) and 16(4). Thus, the principle of class homogeneity is applicable to Articles 15/16 as a whole instead of being confined to Articles 15/16(4).

On this basis, I submit that the principle of identification of a homogenous, well-defined class is well-entrenched in the equality code, and any additions must operate within this principle. There are means of reaching this end without going down the basic structure path, other than the above discussion on an exegesis of the word “economically weak”. I explore this in the penultimate section.

Chitralekha, Article 15(6) and Blurring the Underpinnings of the Creamy Layer

As opposed to Maheshwari J., Pardiwala J. holds that reservations for the EWS category are also in consonance with the principles of identification under Article 16, and uses Chitralekha to further his contention. Chitralekha concerned the constitutionality of a reservation scheme that did not take caste as a factor affecting eligibility, instead evaluating income level and occupation type. The Court upheld the use of this criteria on the basis that the impugned scheme was effective in defining a class that was wholly backward and homogenous. Holding that the reservation scheme did not become unconstitutional solely because caste wasn’t accorded centrality, the Court said the following:

15. Two principles stand out prominently…namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf.

Sawhney was also quite clear in its reading of Chitralekha, holding that as long as a wholly backward class was identified, insisting on the use of caste as a determining criterion was futile:

800. In Chitralekha this court held that such an identification [based on income level and occupation type] is permissible. We see no reason to differ with the said view inasmuch as this is but another method to find socially backward classes…[The] identification of backward classes can be done with reference to castes along with other occupational groups, communities and classes. We did not say that that is the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc. may well qualify for being designated as Backward Classes.

The overarching principle in Chitralekha, therefore, was that a backward class can be defined using non-caste criteria insofar as that other criteria are capable of constituting a homogenous class. It is true that backwardness may exist along axes other than caste, but this backwardness must constitute a precisely delineated homogenous group in the manner it did in Chitralekha. In Articles 15(6) and 16(6) and the Explanation, however, economic disadvantage is considered to be the sole assessor of backwardness. This, instead of being a derivative of the principles in Chitralekha, stands in direct contrast with them, for it constitutes no homogenous “economically weak” class as shown in the above section. The class is presently defined according to a notification issued by the Ministry of Social Justice and Empowerment, which uses solely income and property as class characteristics. This class can hardly be called homogenous, for it comprises of classes having differing occupational mobilities, job security, social safety etc.

These differences may be across lines of caste, religion, sex, income levels or any other factors, but it remains that the EWS category as defined presently does not constitute a homogenous class eligible for reservations.

Pardiwala J. disagrees. He makes the following further argument to establish the ability of purely economic criteria to constitute a homogenous class:

70. If economic advance can be accepted to negate certain social disadvantages for the OBCs [Creamy Layer concept] the converse would be equally relevant… Indra Sawhney (supra) holds that the Chitralekha (supra) propounded occupation-cum-means test can be a basis of social backwardness even for the purposes of Article 16(4). Article 15(6)(b) Explanation defining EWS could be said to be fully compliant with this norm.

If social disadvantage can be undermined by economic advancement, then what stops social advancement from being undermined by economic disadvantage? The purpose of the creamy layer, as is well-established in post-Sawhney doctrine, is to find a class that is truly backward after eliminating its constituents that show better socio-economic indicators. It must be noted that Sawhney itself considered economic advancement per se to be incapable of remedying social disadvantage, prescribing only stark forms of economic advantage that place one in a socially powerful position to sever them from the backward class they were hitherto a part of:

792. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement.

Situation may, however, be different, if he rises so high economically as to become — say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status.

Further:

At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want.

It is, therefore, economic criteria strictly corresponding to social advantage – and not economic advancement per se – that snaps one’s link with the backward class and makes one a part of a “creamy layer”. This principle has been reaffirmed at many occasions, most prominently in Nagaraj and Ashoka Kumar Thakur. In an Article 15/16(6)-equivalent of this reasoning, the economic disadvantage being faced by a group must be so severe as to snap its link with the socially advanced class it was hitherto a part of. The continuation of this argument to reach its logical conclusion was another opportunity where scope for judicial intervention lay without invoking the basic structure test. The Court could have linked economic disadvantage and social advancement, prescribing a mode of determination that necessitates economic disadvantage so severe that social advancement is rendered meaningless. This would, perhaps, do true justice to the principle being derived from Chitralkeha, for all examples of non-caste classes that Sawhney derives using it are situations where economic disadvantage has the potential of undermining social advancement: “agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc.” (¶800).

Alternatives to the Basic Structure Dilemma 

The Court faced an obvious discomfort in striking down the 103^rd Amendment, given its concern with possible stultification in holding caste-based reservations to be the only possible constitutional project and forbidding any other form of reservations under this Constitution [¶74.2.1 (Maheshwari), ¶98 (Pardiwala), ¶6 (Trivedi)]. While sufficient evidence is available to show that caste is presently the primary axis of disadvantage, it might not always be. This determination of changing axes of disadvantage could be reasonably considered outside judicial review, and the Court may choose to give deference to reservation policies addressing new axes of disadvantage. Simultaneously, it would desire to accord some significance to well-established doctrine in the equality code, requiring that additions thereto bear some familiarity to the basic principles on determining backwardness. This is the dilemma of the basic structure, where a declaration of unconstitutionality risks stultification, but a simple approval leaves much in the Parliament’s domain.

The same dilemma was faced by the Court in M. Nagaraj v. Union of India. Sawhney held that reservations can only be provided in matters of appointments, but Parliament added Article 16(4A) to also provide them in matters of promotions. Union of India v. Virpal Singh Chauhan propounded a catch-up rule for reservations in promotions, but Parliament further amended the Constitution to replace the catch-up rule with that of consequential seniority. When faced with a constitutional challenge to this set of amendments, the Court approved them, but with specific conditions on the use of this approval:

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

Given the extremely high threshold of the basic structure test and the corresponding judicial deference it introduces, the Court could have used the path in Nagaraj to uphold the amendments while also prescribing a set of constraints within which it must be exercised. As I have shown above, a class receiving reservations must constitute a discernible homogenous class. The Court could have recognized this, constraining the use of Articles 15/16(6) to reserve seats only for those economically weaker classes that satisfy the occupation-cum-income test in Chitralekha, necessitating the existence of a precise, homogenous economically weak class. Alternatively, the Court could have escaped the dilemma by effectuating the reasoning used for the creamy layer, mandating the existence of such a class whose economic disadvantage is so severe that it snaps its link with the socially advanced class it was hitherto a part of. Nagaraj paved the way to navigate the basic structure dilemma, and this case presented a ripe opportunity to reiterate it.  

Until now, I have shown three possible ways out of the dilemma: an exegesis of the term “economically weak” under Articles 15/16(6), using the framework in Nagaraj to confine benefits only for classes that meet Chitralekha’s criteria, and necessitating the existence of a class so economically disadvantaged that its social advancement is rendered meaningless.

There is, however, one more direction in which the Court could have gone: mandating (or at least encouraging) the use of the principle of sub-categorisation within the EWS class. While the principle of sub-categorisation was approved in Sawhney for the OBCs, its application to the SCs is under contestation due to conflicting judgements in E.V. Chinnaiah v. State of Andhra Pradesh and State of Punjab v. Davinder Singh, both of which navigate the question of relative homogeneity of the SC group differently. Jeevan Reddy J. explained the underpinnings of sub-categorisation in Sawhney as follows:

802. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone­cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them.

The OBCs, according to the judgement in Sawhney, may constitute a class whose homogeneity is under doubt. There could be some components that are better off, while some facing significant disadvantage. This applies equally well to the EWS class, for it includes persons with vastly diverging socioeconomic variables. The Court could have considered this another mode of constraining the use of EWS reservations, concentrating its use towards the worst-off sections of the EWS class. Simultaneously, this would also effectuate reservations for those persons whose economic disadvantage is so severe that its link with their social advancement has snapped.

Conclusion

As I have demonstrated in this piece, the majority judgement avoids meaningful engagement with the question of the application of prior doctrine under Article 16 that necessitates the existence of a homogenous recipient class. Maheshwari J. denies the application of past doctrine, and Pardiwala J. misleadingly conflates EWS reservations with the doctrine laid down in Chitralekha. While a large segment of the Court’s unsatisfactory reasoning has direct roots in the requirements posed by a basic structure challenge, this case presented a ripe opportunity for a creative solution accommodative of prior doctrine on reservations. The Court did not recognize the possibility of escaping this dilemma, which could have been achieved in at least four ways that I have demonstrated in this piece. Ultimately, it succumbed to the deference introduced by the basic structure test, validating a hitherto alien axis of assessing disadvantage. This doesn’t mean that all is lost: the criteria used to delineate the EWS class is always subject to judicial review even when the 103^rd Amendment is held constitutional. The Court may use these principles then, pulling EWS reservations closer to the philosophy of the equality code.

Guest Post: Equality as Non-Exclusion: Justice Bhat’s Dissent in the EWS Case

[This is a guest post by Kieran Correia.]

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The Supreme Court recently handed down a split verdict in Janhit Abhiyan v Union of India, upholding the 103^rd Amendment to the Indian Constitution. The Amendment, in the main, enabled affirmative action for economically weaker sections (EWS), defined by an annual family income of less than Rs 8 lakhs. The verdict cleaved along two issues, with all five justices agreeing on two questions—that reservations grounded solely in ‘economic criteria’ do not violate the basic structure of the Constitution and that reservations can be extended to unaided private educational institutions. The justices disagreed over the third issue: whether the Scheduled Castes, Scheduled Tribes, and the backward classes could be excluded from the scope of EWS reservations.

The Amendment was upheld by Maheshwari, Trivedi, and Pardiwala JJ—all tendering separate, concurring opinions. In dissent was Bhat J, with whose opinion Lalit CJ agreed. Justice Bhat’s opinion is significant for (re)articulating a vision of equality—threading various constitutional articles together into a recognizable ‘identity’—that is fundamentally non-discriminatory and non-exclusionary. Bhat J’s opinion suffers from one constitutional infirmity, which we will examine briefly. But the bulk of this post will examine the rest of the sole opinion that continues, for now in dissent, a long tradition of reading the Constitution in a manner faithful to its purpose.

Non-discrimination and non-exclusion as part of the ‘basic structure’

Since the Court was reviewing a constitutional amendment, it would have to deploy basic-structure review. While hardly perfect, the ‘basic structure’ has come to stand in for India’s constitutional identity—at least as perceived by the courts. The basic structure doctrine was introduced in the now famous Kesavananda Bharati case. In broad strokes, it encapsulates the idea that there are certain features of the Constitution—which have gradually grown through the years—that are unamendable by Parliament. The Court views these facets as so integral to this Constitution that Parliament—even with a special majority—cannot ‘damage or destroy’ them. In other words, this small constitutional pantheon of ideas and practices are inseparably sewn into the fabric of the Constitution; to do away with the basic structure is to do away with the Constitution itself.

Justice Bhat starts off with the point of dissent—whether the exclusion of SCs, STs, and the backward classes is constitutionally permissible. The Union did not disagree over whether the Amendment was exclusionary. Instead, the contention was that it did not “damage or destroy” an element of the basic structure—in this case, the Equality Code.

Bhat J begins by analysing the Equality Code (which he takes to include articles 14 to 17 of the Constitution). He sees the Code as something beyond a set of abstract platitudes; instead, it is an explicit non-discriminatory injunction against the state, which can be directly invoked against discrimination prevalent in society. The judgement locates this Code in the context of a country that is still highly stratified along caste lines and that continues to deny opportunity to individuals solely based on the caste into which they were born. The Constitution’s framers explicitly sought to combat the exclusion this system engendered, and this formed the basis of the Equality Code.

This was the outcome, Anupama Rao tells us, of a long period of organizing, first forged in the complex negotiation between colonial modernity and anti-caste activism towards the end of the nineteenth century. BR Ambedkar was able to take advantage of this and establish dalits as a class of people especially deserving of state protection, leading to the non-discrimination charter inscribed in the Constitution that specifically proscribes caste discrimination. This, moreover, was a positive duty, not merely a negative injunction. The Constitution’s drafters, Bhat J observes:

… went to great lengths to carefully articulate provisions, such that all forms of discrimination were eliminated … to ensure that there was no scope for discrimination of the kind that the society had caused in its most virulent form in the past, before the dawn of the republic. These, together with the affirmative action provisions … was to guarantee that not only facial discrimination was outlawed but also that the existing inequalities were ultimately eliminated [sic]. (emphasis author’s) (para 60)

The Constitution thus understood equality in terms of non-discrimination and non-exclusion. This is, of course, nothing new. Perhaps the most emphatic statement on this came in 2009, when the Delhi High Court read down section 377, which criminalized consensual homosexual intercourse. The HC, Gautam Bhatia observes, merged the Constitution’s guarantees of equal protection and non-discrimination, reordering our understanding of equality into one framed in the language of non-discrimination.

If this was all Justice Bhat did, it would be far from novel and fall far short of what it had set out to do. The next phase Bhat J embarks on—necessary to evaluate a constitutional amendment—is to read this vision of equality into the basic structure. Since this was the first time the State exercised its constituent amending power to ‘practice exclusion of victims of social injustice’, it presented an opportunity for the Court to hitch the principle of non-discrimination to equality. As Justice Bhat reasons:

[T]he irresistible conclusion is that non-discrimination—especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provision in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure. (para 77) (emphasis author’s)

What Justice Bhat is doing here is rearticulating the basic feature of equality in the grammar of non-discrimination. This—by its very nature—sets out a different vision of our constitutional identity, one in line with the framers’ intentions. By placing the principle of non-discrimination on the highest pedestal, Bhat J is essentially arguing that it lies at the very heart of the Constitution; not even Parliament can abrogate that.

Importing article 14’s test into basic-structure analysis

After ensconcing this imagination of equality into the basic structure, Justice Bhat makes, in my view, the misstep of importing the ‘reasonable classification’ test—a relic of an older, more formalist equality jurisprudence. The main issue here, however, is the Court’s confusion of basic-structure analysis with statutory analysis.

The Court has, in the past, engaged in testing the reasonable classification underlying an amendment. In Indira Gandhi v Raj Narain, for example, Chandrachud J (as he then was) analysed the constitutionality of the 39^th Amendment—which Mrs Gandhi’s government introduced to shield her legally contested election from judicial scrutiny—through the prism of reasonable classification. In so doing, he reduced the feature of equality, which he recognized as part of the basic structure, to article 14 and, logically, extended article 14’s test to the basic structure.

This, as Sudhir Krishnaswamy argues, is a flawed approach. The basic structure of the Constitution is not reducible to individual articles; as Mathew J’s opinion in the same case highlights, basic features must be woven out of a broad range of articles. The Kesavananda case clearly did not locate the basic features it identified—constitutional supremacy, secularism, and so on—in individual articles; indeed, they could not be. The abstraction of the basic structure in the language of principle—as its critics would agree—is the point.

Bhat J’s choice to do so here is, with respect, all the more baffling when he acknowledges that the reasonable classification doctrine is not part of the basic structure (para 78). While his analysis eventually yields the result that the Amendment violates the test, this mode of enquiry is constitutionally suspect, at the very least, in examining an amendment. Instead, his enquiry should have only been whether the amendment ‘damages or destroys’ the basic structure—which, we will see, he eventually leads to.

Resolving the individual–community dialectic

The opinion then moves on to the subject of the Constitution’s affirmative action provisions—the individual or the community. Bhat J makes a two-pronged argument here: reservation policies are made on the basis of community (i.e., caste groups) but for the benefit of the individual. The application of this understanding of compensatory discrimination runs against the logic underlying the EWS reservations.

First, the EWS reservations use economic criteria—namely, family income—as the proxy for ‘economic disadvantage’. The petitioners contended, and Justice Bhat agreed, that poverty is an individual disadvantage, in the sense that it is not reducible to ascriptive identity—for example, caste—even though it is the result of structural features in the economy. As he avers:

[The] goal of empowerment through ‘representation’, is not applicable in the case of reservations on the basis of economic criteria—which as the petitioners laboriously contended, is transient, temporary, and rather than a discernible ‘group’, is an individualistic characteristic [sic] (para 97).

This is juxtaposed with caste, which, as Bhat J earlier recognized, is a group disadvantage. The inequalities the Constitution sought to extirpate were inequalities generated by caste structures that limit the potential of an individual based on an accident of birth. Caste—Ambedkar famously defined it as an ‘enclosed class’—cannot be transient or temporary. Poverty’s transience, therefore, is important when we remember that reservations are primarily a tool for securing representation in institutions to groups historically denied this right.

Secondly, however, Justice Bhat emphasizes that the right (to equality, non-discrimination, and so on) is conferred on—and for the benefit of—the individual. A Scheduled Caste woman, therefore, who meets the criteria under the newly inserted clauses would be individually discriminated against through the exclusion principle at work here—solely because she belongs to a Scheduled Caste.

Exclusion as violative of the basic structure

Bhat J then segues into what should have been the mode of enquiry under his basic-structure review: whether the amendment reaches the level of ‘offending or damaging the very identity of the Constitution’ (para 99). A constitutional amendment is unlike ordinary legislation; once made, it is part of the Constitution itself. Therefore, it merits a higher standard of review—the ‘destroy or damage’ test Kesavananda originally laid out—that must view the impugned amendment against the backdrop of the identity of the Constitution.

Importantly, Justice Bhat finds that this high threshold is met. The exclusion of groups the Constitution markedly set out to protect damages the Equality Code of the Constitution. As he sums up:

The exclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code, and thus reaches to the level of offending or damaging the very identity of the Constitution (para 99).

He goes on to rebuke the Union’s disingenuous framing of SCs/STs/backward classes as people already benefitting from affirmative action policies—and therefore undeserving of consideration in the EWS category. These groups are beneficiaries of compensatory discrimination meant to remedy centuries of marginalization at the hands of an order which deemed them less than equal. The exclusion inherent in ‘other than’, in the newly inserted clause, ‘strikes at the heart of the Equality Code.’

What next?

The Court has continued its trend of according deference to the Union when it comes to reservation policies. Many of the majority opinions contain disturbing obiter that run counter to the idea of equality the Constitution envisions; the dilution of reservations meant to rectify centuries-long discrimination seems the logical culmination. Bhat J’s dissent—in striking opposition—articulates a transformative vision of our constitutional identity, one that is anchored to a history of striving to ensure oppressive structures are relics of the past. But for now, its wisdom will be left to another set of lawyers and activists to reclaim.

Guest Post: Scheduled Castes as the “Central Case” of Reservation Policy

[This is a guest post by Anant Sangal.]

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In this article, I argue that owing to the philosophical design of the Equality Code [Articles 15(1), 16(1), 16(2), 16(4), and 17] of the Indian Constitution, the affirmative action for Scheduled Castes [SCs] has a premier status in the sprawling range of ‘special provisions’ the Indian affirmative action regime offers.Its constitutional logic aside, it will be my case here that the very rationale undergirding the affirmative action framework is such, that the framework is able to redeem itself as a social and moral reality most substantively when invoked primarily by the SCs in India. I establish this claim in the following two steps.

First, I make a case for the special status of the Scheduled Castes in the Indian Constitution by arguing that the Equality Code itself is a radical response to India’s deeply compartmentalized social order, sectored into the Varna social groups and those outside it, the pariahs, that is. It was the Drafting Committee’s umbilical linkage to our collective historical realities, that imparted the Equality Code with its modern-day shape and substance. In that limited sense, the induction of the EWS quota was an upsetting departure from the Code’s normative ambitions.

Having argued this, I will then move on to the second rung and make the core of the case in defense of the moral and ethical aims of the affirmative action policy. That it must be imagined, inter alia, as a specialized remedial and (as Marc Galanter calls it) a “compensatory discrimination” tool, meant to overcome the hardened socio-historical cleavages than to meet the exigencies of politics for ensuring unending electoral relevance.

Equality Code – The Tombstone of Untouchability

The inaugural years of the Indian republic brought along many constitutional surprises. The decision of the Supreme Court (‘Court’) in Champakam Dorairajan (1951) exposed the Court’s fixation with what I call as hyper-textualism. The Champakam Court struck down a reservation policy, that in the Court’s reasoning violated an individual’s fundamental rights upon a conjoint reading of Articles 15(1) and 29(2). As mentioned in the ‘Statement of Objects and Reasons’ to the Constitution (First Amendment) Act, 1951, the Parliament while acting in its constituent capacity attempted to reverse the “social injustice” caused due to the ‘judicial decisions and pronouncements’. The dualism stemming from the Court’s ruling in Champakam and the Parliament’s amendment to Article 15 in the ruling’s response, negatively furthered the vision of a ‘caste-blind’ Constitution (see Gautam Bhatia, 2019).

The Parliament defended the insertion using Article 46 as the plank. However, even if that were accepted as given, the real thrust of Article 46 was to “promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes”. While Article 16(4) was an embodiment of a history of a very community-specific socio-economic-political subjugation, the 1951 Parliament’s clause (4) to Article 15 stood in stark contravention to its Article 16 counterpart. Along with the SCs and STs, the Parliament created an altogether different class of citizens, who were now entitled to state’s constitutional protection – something that was certainly beyond the constitutional intendment underlying the reservations’ scheme, that I discuss at length later.

This was the first instance when the Parliament, while riding the sentiment wave against the Court, effectively undermined Part III to the extent its role as the ‘sentinel’ of social justice was concerned. By inserting terms as broad (“any socially and educationally backward classes of citizens or […]”), it effectively manufactured an elbow-room for the state at all levels and laid the foundations for future political skirmishes at the cost of the historically and structurally oppressed. As Galanter argues, the ‘purpose of compensatory discrimination was to promote equalization of offsetting historically accumulated inequalities’, which have resulted in their forever economic deprivation and social decimation. However, the Parliament’s experimentation with affirmative action militated against the settled principles and overlooked the historical rationale for ‘quota’ disbursement.

The vulnerabilities that enabled Dalit emancipation through constitutional means were first organised by Jyotirao Phule, who described the Dalit history as an age of defeat, humiliation, and degradation. Ambedkar, however, characterized Dalits as a distinctive ‘ethical and political’ community, that was compelled to feed on the dead cattle for sustenance but then stigmatized for its impure way of living and feeding habits. The stigma of untouchability, however, was not only due to the activities the community performed. It was premised and ingrained since their birth, and lasted throughout their lives irrespective of the non-menial professions they ‘may’ subsequently, if at all, switch to. Ambedkar’s depiction of the community was therefore that of excessive stigmatization, which, as Anupama Rao has argued, was an attempt ‘to move away from colonial definitions of religious communities [imagining them] as political actors’. The careful classification that Rao drew, however, did not deter the emergence of a modern political constituency, that would settle for nothing less than a separate electorate centuries later in 1932.

As untouchability was fundamental to their severe social suppression, the 1931 JH Hutton Commission (‘Commission’) used untouchability and its various manifestations itself as markers to identify the untouchable groups (then Depressed Classes). Based on the history of disabilities and the type of discrimination the SCs faced, the Commission came up with nine (9) criteria, which could be organised roughly into four broad categories – (1) social; (2) educational; (3) economic; and (4) religious. The Commission’s criteria were wholly rejected by many, including Ambedkar, for being exclusionary and narrow as many castes in the North failed to meet some of the criteria that the castes in the South could meet, and likewise. In the words of Lelah Dushkin, “all of the castes included in the final [Scheduled Castes’] list were socially the lowest Hindu castes in their particular provinces and they were listed partly, at least, on that basis.”.

Therefore, it was the historical specificity and unusualness of the Dalit experience that lay at the core of conceptualising special measures for the Scheduled Castes (and Scheduled Tribes) in the new postcolonial Constitution. To establish the thought-process that underscored the Constituent Assembly while introducing the affirmative action provisions in the Indian Constitution, I borrow liberally from Malavika Prasad’s original effort, where she traced the relevant debates on the issue.

On the question of reservations for the Scheduled Castes in the legislatures, Sardar Nagappa argued that the ‘Scheduled Castes were “an economic, political and social minority,” for whom representation ought to be secured through reservations.’. He further said that, “even today, here and now, I am prepared for the abolition of the reservation, provided every Harijan family gets ten acres of wet land, twenty acres of dry land and all the children of Harijans are educated, free of cost, up to the university course and given one-fifth of the key posts either in the civilian departments or in the military departments.”. The socioeconomic marginalization of the SCs and STs and the resultant bid to secure their representation became the leitmotiv for the proponents of reservations in the Constituent Assembly.

This was significantly distinct from Mahavir Tyagi’s prolificity for reservation for the cobblers, washermen, landless labourers and his opposition to that for the Scheduled Castes. However, as Prasad has culled out, Tyagi’s case for economic reservation and his opposition to S Nagappa was remarkably different from the modern-day 103^rd amendment. This is because his proposal was sans the income criterion – a case that lumped the “occupational communities and classes of labourers” together as a truly Marxian class. Tyagi did not “believe in the minorities on community basis, but [that] minorities must exist on economic basis”. Consequently, the Constitution as it stood on 26 November 1949 rejected economic basis and went ahead with reservations based on social backwardness of the Indian citizens.

In the initial segment of this part of the article, I had mentioned about the “constitutional intendment” that underlay the Constitution’s affirmative action policy. At the cost of reiteration and as I will establish now, it is my case that the mention of ‘backwardness’ in Article 16(4) connoted to (and only to) the Scheduled Castes and Scheduled Tribes.

The Constituent Assembly had (by vote) categorically defeated the demands of recognizing economic backwardness and resultantly, Article 16(4) – a fruit of long-held deliberations – emerged as a testament to the social and educational backwardness of SCs and STs. The Parliament in 1951, however, severely faltered in not ‘replicating’ the language and structure of Article 16(4) while inserting clause (4) to Article 15, in its bid to circumvent the decision in Champakam. As President Rajendra Prasad established the First Backward Classes Commission under Kaka Kalelkar in 1953 to enlarge the net of affirmative action for citizens, it is pertinent to scan the motivations that led to modelling clause (4) to Article 15 in that specific manner. It could be deciphered from the following.

Article 340 provided for the President to establish a commission to investigate the conditions of ‘socially and educationally’ backward classes in India. It is important to note that this commission could make recommendations for improving the condition and status of the backward classes that the commission recognizes as such. However, there are two very crucial clarifications that are important to be underlined and be cognizant of while understanding any exercise of the power under Article 340(1). This is due to reason that the power’s exercise [under Article 340(1)] may possibly have had a tangential impact even on Article 15(4)’s lingual framework.

First, even if it is assumed that the original Article 16(4) included classes beyond SCs and STs (which inspired the Parliament to design Article 15(4) in the manner it did), Article 340(1) does not recognize or provide for the “special provision” or “any provision” as the case with Articles 15(3) or 16(4) respectively existed at the time of introducing clause (4) to Article 15. The ambit to improve the condition of the backward classes under Article 340 is, by way of constitutional remit, greatly restricted. Second and arguendo, even if a really broad interpretation is to be imparted to Article 340(1) to suggest that the phrase “make recommendations as to the steps that should be taken” may include even special provisions owing to Article 16(4) for classes in addition to SCs and STs, the recommendation to introduce such affirmative action should invariably precede its introduction itself. However, as clause (4) to Article 15 was incorporated in 1951 whereas the First Backward Classes Commission came up only in 1953 (tabling its report even later in 1955), that logic as well is defective and does not sustain the constitutional merit.

The Nehru government used the amendment to the Constitution as an opportunity to scale up the horizons, as prior to clause (4)’s incorporation to Article 15, the Constitution did not use “socially and educationally” backward at any place except in Article 340(1). In addition to this, the existence of Articles 341 and 342 for scheduling different castes and tribes respectively when read with Article 16(4) makes the case even stronger in favour of the SCs and STs. Therefore, the purpose and intent of the drafters was unfailingly clear to restrict the constitutional scope of reservations only to SCs and STs.

Having elaborated on multiple facets of affirmative action as a policy, I will conclude this post with a cautionary tale with respect to the claim of the Other Backward Classes on reservations. The OBCs have come to attain a very peculiar status in the entire Indian affirmative action framework. Despite my deep inclination, therefore, this commentary deliberately does not take any position with respect to the politics of their backwardness and subsequent reservation movements. However, as Mohsin Alam Bhat argues (although from a different vantage point), the judgment in “Indra Sawhney came to authoritatively sanction the centrality of caste-identity in the Indian affirmative action regime.”. The question of OBC reservations has been interrogated by scholars of eminence (Marc Galanter, for instance) and I intend to excavate the nuances of that debate at some later point.

Guest Post: The Constitutional Case Against EWS Reservations – Exploring the Principle of Reparative Justice under the Indian Constitution

[This is a guest post by Utkarsh Roy.]

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Introduction

In January 2019, Parliament enacted the Constitution (103^rd 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.

103^rd 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.

103^rd 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.

Reservations in Promotions: The Clarificatory Judgment in Jarnail Singh – II

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

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On January 28, a three-judge bench of the Supreme Court handed down a judgment in Jarnail Singh v Lacchmi Narain [Jarnail Singh – II], clarifying some of the issues that had arisen out of the Consitution Bench judgment of the same name, delivered in 2018 [Jarnail Singh – I]. In Jarnail Singh – II, the Court clarified that (i) the yardstick for determining what constitutes “inadequacy of representation” in the services was a matter of executive discretion; (ii) determining inadequacy of representation as a pre-condition to granting reservations was mandatory, and would have to be reviewed on a periodic and “reasonable” basis; (iii) that the unit of determining inadequacy of representation was the “cadre”, and not the service as a whole; (iv) and that the judgment in M. Nagaraj would operate prospectively.

The Court’s first conclusion – that the yardstick for determining inadequacy is at the discretion of the State – seems unexceptionable at first glance, but is worth closer scrutiny. The Court’s judgment, in my view, implicitly continues with the tension between two strands of Indian jurisprudence on reservations, which I highlighted in my last post. Because if it is true that – after N.M. Thomas – Article 16(4) (and therefore, by extension, Articles 16(4A) and (4B), which deal with reservations in promotions) is a facet of equal protection, then it follows that reservations are not merely enabled by Article 16(4), but are a part of the overall substantive equality code. It then follows that the determination of “inadequacy” is a question of substantive equality, and that executive failure to do it in the first place – or to do it improperly – triggers a constitutional right under Article 16(1). It follows, in turn, that in principle at least, the methods that the State follows to determine inadequacy of representation in public employment have to be subject to judicial review, on the grounds of substantive equality.

Indeed, there seems to be an internal tension within the judgment itself, because it does mandate that the unit for determining adequacy has to be the cadre. But the “cadre” – as the judgment itself acknowledges – is itself a creation of service law jurisprudence. The Court appears to argue that the reason why cadres have to be taken as the bases for determining inadequacy in representation is because promotions happen cadre-wise (see e.g., para 28). But here, the Court is engaging in a judicial determination of what form of substantive inequality (i.e., substantive inequality with respect to representation within cadres, and not – for example – the whole service) would merit the triggering of a reservations policy. Why then would the same considerations not apply when it comes to determination of substantive inequality – as a justification for reservations – in general? This is not, of course, to suggest that the Court should substitute its judgment for the judgment of the executive; it is, however, to suggest that if a citizen comes before the Court stating that the State’s reservation policy – or absence thereof – discriminates against them by ignoring the structural and institutional barriers that they face (i.e., substantive inequality), then the Court should not ipso facto shut its doors to that claim. To reiterate, this is not equivalent to claiming that there is a “right to reservation”. The claim, rather, is that there is a right to substantive equality, one remedy for which is reservation.

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[PS. On another – unrelated – note, while holding that the judgment in Nagaraj was to be applied prospectively, the Court distinguished the prior judgment in M.A. Murthy, by noting that its seemingly contrary observations were obiter dicta, and not binding. Long-time followers of the Supreme Court’s jurisprudence might be somewhat bemused by the extensive discussion on ratio decidendi and obiter dicta that takes place in paragraph 41 of the judgment, given that the Court has, on previous occasions, held that there is no such distinction when it comes to its own judgments, and that – in effect – both ratio and obiter in Supreme Court judgments constitute the law. Perhaps, on some occasion, we will need a Constitution Bench just to clarify this point!]

Merit, Equality, and Reservations: The Supreme Court’s NEET Judgment

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

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On 20th January, a two-judge bench of the Supreme Court handed down its judgment in Neil Aurelio Nunes v Union of India. The case arose out of constitutional challenges to reservations for Other Backward Classes [“OBCs”] and the Economically Weaker Section [“EWS”], in the entrance examination [“NEET”] for undergraduate and postgraduate medical courses. The Supreme Court dismissed the challenge to OBC reservations, and posted the challenge to EWS reservations for further, more detailed hearing.

More specifically, the question before the Court was whether, in light of precedent, it was permissible for the government to carve out further quotas for OBCs within the All-India Quota [“AIQ”] in the NEET. The controversy arose because under existing law, state-run medical institutions have two distinct sets of of seats: one set of seats is limited to students domiciled in the state in question, and the other set forms part of the AIQ – i.e., it is available, on the basis of performance in the NEET, to students from across the country. The AIQ is fixed at 15% of the total number of undergraduate seats in an institution, and 50% of the total number of seats in a postgraduate institution.

Precedent appeared to signal a split verdict in the courts about whether it was permissible for state governments to carve out reservations for OBCs within the AIQ. The root of the seeming split was certain observation in Pradeep Jain v Union of India (the judgment that was the basis for the AIQ in the first place) that seemed to suggest that “merit” could be the only criterion for entry into postgraduate medical courses. Petitioners argued that Pradeep Jain was authority for the proposition that as far as the AIQ was concerned, performance in the open examination (“merit”) could be the only criteria for admissions – thus, ipso facto, excluding reservations.

However, a close reading of Pradeep Jain reveals that that judgment – authored by P.N. Bhagwati J – achieved the seemingly impossible task of simultaneously endorsing three conflicting conceptions of “merit”. Compare the following three paragraphs, all from the same judgment:

Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social, value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges…

In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground the every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. 

The result is that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit on the basis of either all India Entrance Exam or entrance examination to be held by the State. Of course, we need not add that even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious student from within such source or sources.

In the first cited paragraph, Bhagwati J propounded a capacious understanding of “merit” that was not limited to performance in an examination. In the second paragraph, Bhagwati J propounded a narrower understanding of merit that was nonetheless consistent with equality if the purpose was to eliminate structural hierarchies. And in the third paragraph, Bhagwati J propounded an even narrower understanding of merit, which was limited to performance in an examination, structural hierarchies be damned. These three conceptions are very evidently at war with each other: for example, if it is true that merit as determined by performance in an examination can be subordinated to concerns of guaranteeing structural equality, then it makes absolutely no sense to simultaneously prohibit reservations under the AIQ – because then, which constitutional guarantee is the Court pegging this prohibition on, if the guarantee of equal protection is not, after all, triggered by reservations?

The upshot of all of this is that Pradeep Jain effectively contradicted itself (repeatedly) on this point, and no clear legal proposition emerges from that judgment. Accordingly, it was open to the Court in Neil Aurelio Nunes to craft its own understanding of the relationship between merit and equality, in light of more general Article 16 precedent. Indeed, this is what the Court did: Chandrachud J traced the history of reservations jurisprudence, noting that after the judgment in N.M. Thomas, the binary opposition between reservations and equality was no longer part of Indian equality law. Referring to his previous judgment in B.K. Pavitra, he went on to observe that:

Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as ―merit‖ reproducing and reaffirming social hierarchies … At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character. (paragraph 24)

This understanding of merit as a social construct then allowed the Court to read the judgment in Pradeep Jain in the following manner:

The observation of this Court [i.e. in Pradeep Jain] that AIQ seats must be filled purely on the basis of merit, cannot be interpreted to mean that there shall be no reservations in the AIQ seats. As noted in Section D.1 of this judgement, merit must be socially contextualised and reconceptualized according to its distributive consequences where it furthers substantive equality in terms of Articles 15 (4) and 15 (5) of the Constitution. The reference to merit in paragraph 21 of the judgment must be read with the previous observations made in the judgment. (paragraph 45)

As I have argued above, the fact that Pradeep Jain was itself internally contradictory made it open to the Court in the present case to reach this conclusion – which it did, on the basis of its reading of the history of reservations jurisprudence more broadly. Once the Court reached that conclusion, it followed inevitably that reservations for OBCs within the AIQ quote were permissible. The government notification was accordingly upheld. The Court also – and in my view, correctly – dismissed two other arguments raised by the petitioners: that, as the AIQ was essentially a “creation” of the Court in Pradeep Jain, reservations within the AIQ quota could only be implemented following a court order; and that the “rules of the game” had been changed midway by introducing OBC reservation into NEET.

The Supreme Court’s structural understanding of merit will be familiar to those who have studied Chandrachud J’s previous judgment in B.K. Pavitra (see analysis here); and the tracing of the evolution of reservation jurisprudence with N.M. Thomas being the inflection point is also a familiar story, which ties into the transformative vision of equality under Articles 14, 15, and 16. It is important to note, however, that there appears to be an increasingly wide split in the Supreme Court’s contemporary reservations jurisprudence. As I have argued elsewhere, even though N.M. Thomas was clear on the point that reservations under Article 16(4) are a “facet” of equality under Article 16(1), and not an exception to it, this position was muddied by Indra Sawhney claiming that a “balance” has to be struck between Articles 16(1) and 16(4). The vocabulary of “balancing” over the last three decades has essentially eroded the holding in N.M. Thomas, and partially taken us back to the binary opposition between “merit” and “equality” that the Court – in this judgment – has (in my view, rightly) deplored.

The most obvious example of this is the stubborn refusal of multiple benches to recognise that – once it is held that Article 16(4) is a facet of Article 16(1) – a right to substantive equality becomes a right under Article 16(1). In other words, as Karan Lahiri has argued previously, Articles 16(1) and 16(4), read together, no longer merely confer a power upon the State to craft affirmative action policies, but also a duty to ascertain existing substantive inequalities, and take affirmative action to remedy them. Courts, however, have consistently refused to recognise this fact, instead repeating – like a mantra – that “there is no right to reservations.” This view of reservations and equality is evidently inconsistent with the N.M. Thomas-inspired view taken by the Court in B.K. Pavitra and, now, in Neil Aurelio Nunes. In my submission, therefore, it is imperative for a Constitution Bench – of at least five judges, if not more – to authoritatively clarify the relationship between merit, equality, reservations, and the relationship between Articles 16(1) and 16(4) under the Constitution, and to lay down clear guidance for future two and three-judge benches that consider specific issues around reservations.