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.]


In January 2019, Parliament enacted the Constitution (103rd Amendment) Act, 2019 (“the Constitutional Amendment”), which amended Articles 15 and 16 by inserting Articles 15(6) and 16(6) into the equality code of the Constitution, and introduced reservation in the spheres of higher education and public employment for the Economically Weaker Sections (“EWS”) on the basis of their ‘financial incapacity.’ Articles 15(6) and 16(6), categorically speak of economically weaker sections of citizens other than the classes mentioned in Articles 15(4), 15(5) and 16(4). Therefore, the category of EWS arguably excludes the economically weak from Scheduled Castes (“SCs”), Scheduled Tribes (“STs”) and Other Backward Castes (‘OBCs’).

Until the Constitutional Amendment was introduced into the Constitution, reservation was restricted to certain social groups who suffer marginalisation on the basis of their ascribed identity. Such social groups comprise of various endogamous units constituting the three categories of OBCs, SCs, and STs on the basis of the social marginalisation and subjugation faced by them on account of their ascribed caste identity. The degree of such social marginalisation or oppression on the basis of caste identity varies across these three categories; however the nature of marginalisation finds its root in the caste identities for all the three categories.

The SCs comprise of those castes who were at the receiving end of the worst form of oppression on the basis of their caste identity and were labelled as ‘untouchables’ on account of them being assigned such tasks that were considered ritually polluted and impure. (Anand Teltumbde, The Persistence of Caste (Zed Books 2010), pg 14). The STs comprise of those indigenous communities (also referred to as ‘Adivasis’) who face oppression due to their isolation or exclusion from ‘mainstream’ society. Sanjukta Das argues that owning to such exclusion, the dominant mainstream society pejoratively categorises them as the ‘primitive other’ or ‘savages’ on the basis of their identity. The administrative category of OBCs encompasses those castes who were identified as ‘Shudras,’ and who were engaged in various marginal occupation assigned to them by the society to serve the upper three varnas higher to them in the caste hierarchy. According to DL Sheth, the OBCs have suffered from varying degree of ritual prohibitions (D.L. Sheth, ‘Changing Terms of Elite Discourse: The Case of Reservation for ‘Other Backward Classes’’in Zoya Hasan (eds), Politics and the State in India (Sage India 2000) pg 222). The Mandal Commission recommended, inter alia, reservation in favour of the OBCs in higher education and public employment on the ground that the OBCs were marginalised and excluded from institutions in the society on the basis of their inferior status in the caste hierarchy (Mandal Commission Report, Vol I, Chap 4, pg. 14). The Supreme Court in Indra Sawhney v Union of India (Indra Sawhney) relied on the observations of Mandal Commission that described how Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them (Indra Sawhney, Paragraph 13)  Similar rationale can be discerned regarding the constitutional provision for reservation in favour of women who have been at the receiving end of the oppression on the basis of their gendered identity.

In this essay I intend to establish that reparation towards marginalized identities like Schedule Castes, Schedule Tribes, Other Backward Classes, Women, Trans people etc. (collectively referred to as “Socially Marginalized Identities” or “SMIs”), forms part of the basic structure of the Constitution. I start off by emphasizing on the significant difference between the nature of injustices suffered by the SMIs and the EWS. I go on to argue that underlying principle behind the provisions dealing with reservation within the constitutional framework is essentially that of reparation. Further, I argue that the term ‘reparation’ necessarily involves acknowledgement / apology on the part of the oppressors for the oppression committed by them on the SMIs, coupled with a measure which intends to remedy the injustices of the past, i.e., reservation. Furthermore, I argue that the underlying principle of reparation, including its crucial element of acknowledgement, forms part of the basic structure. Lastly, I argue that the Constitutional Amendment erases the principle of reparation from the Indian Constitution, and therefore violates the basic structure of the Constitution. 

Difference between Identity-Based Oppression and Poverty

One has to be mindful that the SMIs and EWS are not similarly situated. The cause and nature of injustice suffered by the two groups are significantly different. Hill Jr. argues that racial and sexist oppression not only involved depravation in terms of tangible goods or denial of rights and opportunities, which can be roughly quantified and “paid back” in kind, but also consisted of psychological injury in the form of humiliation and contemptuous treatment which could not be paid back in the strict sense. Forms of oppression such as casteism, sexism and racism are primarily in the nature of psychological injury to the dignity of the entire social group. Therefore, the damage caused to the SMIs includes psychological damage in addition to material damage, which cannot therefore be compensated through material compensation. As Judith Jarvis Thomson argues in the context of racism and sexism:

And even those who were not themselves down-graded for being black or female have suffered the consequences of the down-grading of other blacks and women: lack of self-confidence and lack of self-respect.

Affront to the dignity of the SMIs requires moral repair or acknowledgement on the part of the oppressors along with a remedial measure to ensure the sincerity of the acknowledgement.

Further, the causes behind the injustice suffered by the EWS and SMIs are inherently different. There is a deliberate intention to oppress, exclude and subjugate the SMIs on the part of the oppressors on the basis of their supposed inferior social standing. The intentional nature of marginalization involved in egregious injustices like casteism, racism or sexism, wherein a dominant group consciously oppresses the subordinate group on the basis of its identity, sets it apart from economic injustice, which is result of structural or institutional maldistribution of wealth in the society. Therefore, the injustice suffered by the EWS is in terms of economic deprivation on account of the economic structure which has neglected them and allows the inequitable accumulation of wealth.

The claim of EWS, along with the economically disadvantaged among SMIs, is essentially of distributive justice which seeks redistribution of wealth in the society, while the claim of SMIs, including those who belong to the economically advanced sections among the SMIs, is essentially of moral repair or reparation on the on the part of the oppressors for the affront to their dignity.

Reservation Envisaged as a Distinct Remedy to Address Identity-Based Oppression

To enquire whether reservation was envisaged specifically to remedy the injustice done on the basis of identity, reference can be made to Justice Sawant’s opinion in Indra Sawhney, wherein he observed that:

However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression “weaker sections of the people” in Article 46 should not be mixed up with the expression “backward class of citizens” under Article 16(4).

In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). (emphasis added)” [Paragraph 575]

Justice Sawant further observed:

If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination (emphasis added) [Paragraph 520].”

The tenor of the foregoing observation makes it clear that reservation is envisaged as a distinct and separate remedy to address the past (and present) injustice suffered by certain social groups on the basis of their caste. Therefore, Justice Sawant opined that the basis of remedial measure has to be caste, if the exclusion or oppression was done on the basis of caste. The foregoing rationale behind reservation can be extrapolated to other marginalised identities like women and trans people, who have been oppressed on the basis of their gender or sexual identity.

Further, Justice Sawant observes that reservation is not meant as a remedy for the economically weak among the dominant sections of the society, as they are already well represented in the sphere of higher education and employment. Therefore, by necessary implication, it can be concluded that reservation in the spheres of higher education and employment is meant to address a specific kind of injustice based on the identity of certain social groups, as opposed to injustice solely in terms of economic or material depravation.

The Underlying Principle behind Articles 15(4), 15(5), 16(4) and 16(4A) 

In Indra Sawhney, the respective opinions delivered by Justice Reddy (along with three other Justices), Justice Sawant and Justice Pandian (“the Combined Opinion”) stressed on the past injustices and marginalisation committed to the SMIs on the basis of their caste identity. From the Combined Opinion, one can conclude that there was a consensus with respect to the proposition that the measure of reservation is meant to address the historical injustices suffered by the SMIs. The combined opinion recognised that the aim and purpose of reservation was to restore the imbalance created in the favour of the dominant social groups on account of the concomitant injustice suffered by the SMIs. Therefore, six out of the nine judges in Indra Sawhney were of the opinion that the measure of reservation was meant to remedy the past injustices suffered by certain social groups and to redress the imbalance created on account of such injustices.

In the context of determining the quantum of reservation, Justice Reddy observed that:

True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go, i.e., in a year or two. (emphasis added) [Paragraph 96]

In the above observation, Justice Reddy not only recognised the fact that the Backward classes have suffered historical social injustice but also acknowledged that they continue to being subjected to such injustice even today. Further, the foregoing observation makes it clear that the measure of reservation is meant to redress the imbalance caused due to centuries of injustice. In other words, reservation is meant to undertake reparation.

Subsequently, in M Nagaraj v Union of India (M Nagaraj), the Constitution Bench observed that Article 16(4) reflected the principle of ‘egalitarian equality’ which essentially required the State to undertake affirmative action in favour of disadvantaged section of the society within in the democratic set up. The Constitution Bench in M Nagaraj, made a very crucial observation that:

“Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. (emphasis added)” [Paragraph 71]

The foregoing observation by the Constitution Bench in M. Nagaraj recognised that Article 16(4) is meant to remedy the past historical discrimination suffered by certain social identities who constitute a distinct social class. Therefore, the principle of egalitarian equality reflected through the Article 16(4) is essentially to undertake reparation towards the SMIs in order to remedy the past injustices suffered by them.

Reparations as Part of the Basic Structure

Krishnaswamy argues that in order identify a basic feature, the court looks for ‘features’ of the Constitution reflected through various provision of the Constitution which may be regarded as moral and political principles at the normative core of the Constitution (Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, (Oxford University Press 2009) pg. 146).

In M Nagaraj, the Constitution Bench observed that the Constitution is committed to certain principles, which are manifested through various articles. Therefore, various provisions of the Constitution might be interwoven with a common commitment to certain overarching principle, which are distinguished as essential features (the basic structure) of the Constitution. Such overarching principles which are recognised as essential features are reflected through different provisions that are spread across different parts of the Constitution. [Paragraph 19]

At this stage it is pertinent to refer to the concurring opinion by Justice Pandian in Indra Sawhney, wherein he observed:

There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment. (emphasis added).” [Paragraph 145]

The foregoing observation by Justice Pandian indicates that a common thread runs through various constitutional provisions spread across different parts of the Constitution. Justice Pandian’s observation that such provisions are meant to “redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes,” strongly suggests that an overarching principle of reparation runs as a common thread through such provisions. Further, according to Justice Pandian, this overarching principle “is not merely a part of the Constitution but also a national commitment.” Therefore, I argue that the above observation made by Justice Pandian indicates that the overarching principle of Reparative Justice which runs through various provisions of the Constitution is an essential feature of the Constitution. 

Furthermore, in I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu and Ors, (IR Coelho), Sabharwal CJ made following observation on behalf of the nine-judge Constitution Bench:

India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution. The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case. (emphasis added) [Paragraph 62]

The foregoing observation by Constitution Bench categorically recognizes that the essence of fundamental rights forms part of the basic structure of the Constitution. The concrete provisions are the manifestation of the underlying abstract philosophies or values behind such provisions. The underlying abstract principles or values behind such provisions have to be distinguished from the text of the provisions itself, as it is the former which forms part of the basic structure. The textual provisions can be amended through constitutional amendment, as long as it is not destroying the underlying principle behind those provisions. In case a constitutional amendment alters or infringes the underlying abstract principle behind a textual provision or the essence behind the fundamental rights, it would amount to violation of the basic structure of the Constitution.

Therefore, an amendment of a constitutional provision which is meant to further the abstract value behind such provision would not violate the basic structure, as the amendment would be in consonance with the abstract value which forms part of the basic structure. For instance, in M Nagaraj, the Constitution Bench observed that the identity of the Constitution was not altered upon the insertion of Article 16(4A), through a constitutional amendment. The Constitution Bench observed that Article 16(4A) flows from Article 16(4) indicating that constitutional amendment introducing reservations in promotions was in furtherance of the principle already enshrined in Article 16(4). I argue that the Constitution Bench in M. Nagaraj observed that there was no change to the identity of the Constitution on account of the constitutional amendment because the insertion of Article 16(4A) was in consonance with underlying principle enshrined in the Article 16(4) (mutatis mutandis in Articles 15(4), and 15(5), i.e., principle of reparation towards the SMIs. 

Envisaging Reparation as an Eternal Concept

There could conceptual or philosophical problems in envisaging reparation as part of the basic structure. For a principle to form part of the basic structure, it should be of eternal character. On the face of it, reparation might seem to be a process which has an definite endpoint. However, I argue that reparation is an eternal process which requires acknowledgement on the part of the oppressors along with a remedial measure to substantiate that acknowledgement, and the acknowledgement outlives the remedial measure.   

As per Boxill, the acknowledgement of the past injustice from the oppressors is a prerequisite under the premise that every person is equal in worth and dignity. The absence of such acknowledgement or admission on the part of the oppressor would indicate that the oppressor has merely treated the oppressed groups in which it deems fit, wherein, the terms of such measure are set by the oppressors itself. In such scenario, Boxill argues, that measure undertaken would not establish equality between the oppressor and the oppressed.

Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressor believes or considers the oppressed group as its equal. In other words, justice demands that the society, and therefore the State acknowledges that it is undertaking remedial measure towards the SMIs in the form of quotas or reservation, precisely because such treatment or measure is required from the State on account of the past injustice suffered by the SMIs. Acknowledgement on part of State, and therefore, the society would reinforce its belief in the equality of the SMIs by admitting that reservation is required precisely because of the malicious and intentional marginalisation faced by the SMIs at the hands of the society and that the measure of reservation seeks to remedy the affront to their dignity.

Therefore, the acknowledgement is one of the two crucial elements of reparation. The acknowledgement would outlive the remedial measure of reservation. Karl Figlio argues that remembering is reparation and that reparation is a never-ending urge. Figlio relies on Habermas, who advocated an endless, ever-incomplete work of ‘critical self-examination’ for Germany in the context of reparation to Jews. (Karl Figlio, Remembering as Reparation, (Palgrave Macmillan) pg. 124). In the context of German reparation to Jews, Habermas espouses critical self-examination of subsequent generations and argues that there is an obligation incumbent upon Germany to keep alive the memory of the suffering of the victims of Holocaust. Habermas suggested that subsequent generations can practice solidarity with victims of Holocaust, only through the “medium of remembrance that is repeatedly renewed,” continually on one’s mind (J. Habermas, S.W. Nicholsen, The New Conservatism: Cultural Criticism and the Historians’ Debate Studies in Contemporary German Social Thought (MIT Press) pg. 28)

Reparation is constituted by two elements – acknowledgement and a measure to substantiate the acknowledgement. In case either of the two is absent, then the act won’t amount to reparation. The two elements of reparation, i.e., acknowledgement and remedial measure complete each other. Acknowledgement is required to ensure that the remedial measure is undertaken precisely to address the past injustices and to uphold the dignity of the SMIs and remedial measure is required to ensure that the acknowledgement is a sincere one.  The remedial measure of reservation acts as a concrete limb to the abstract principle of acknowledgement. Though the remedial measure, i.e., reservation might be eventually phased out if certain material conditions were fulfilled, the acknowledgement of the society towards the SMIs would be there for eternity. The remedial measure of reservation is closely entwined with the acknowledgement, as the substance of the acknowledgement is predicated on the undertaking of the remedial measure of reservation.

Reservation as an Acknowledgement Forms a Part of the Basic Structure

I argue that that the remedial measure of reservation under the Indian Constitution itself amounts to an acknowledgement on the part of the State, which is a representative of the society which subjugated the SMIs. The Indian constitution envisages reservation as a distinct remedial measure meant for addressing past injustices suffered by SMIs. The distinct nature of the remedial measure amounts to acknowledgement on the part of the society. Khaitan argues that the strong form of affirmative action like quotas should be set aside only for the social groups who have suffered from egregious historical injustices like slavery, apartheid and casteism, as in such cases the quotas could indicate an admission or acknowledgement of the trauma of these past injustices (Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press 2015) pg. 223). In the context of race-based affirmative action, Bridges argues that it could be the most moral effort that society could make insofar as it reminds society about the racial injury that the racial minorities in the US have suffered. The requirement of acknowledgement also indicates that the measure meant for reparation cannot be subsumed with other claims of justice. It is argued, in the context of Black reparation, that the agenda of black reparation should not be remoulded into a ‘universalistic’ reform meant for all American citizens or redesigned for poor people (including poor white population) per se (C.J. Munford, ‘Reparations: Strategic Considerations for Black Americans’ in Roy L. Brooks (eds), When Sorry Isn’t Enough (New York University Press 1999) 424).

Therefore, in the Indian context, reservation serves the dual purpose of acknowledgement and remedial measure. The acknowledgement and the remedial measure are interwoven with each other. Any alteration with the remedial measure would completely erase the acknowledgement. Hence, the aspect of reservation which signifies acknowledgement, i.e., it being a remedy of distinct nature meant to address specific kind of injustice suffered on the basis of identity, is part of the basic structure.

This argument in no way suggests that the Constitution forecloses the possibility of parliament coming up with an alternate measure of undertaking reparation. From the broadly worded texted of Article 15(4), it is amply clear that Constitution allows the parliament to come up with additional measures as a supplementary to the existing reparative measures, to further the abstract principle of reparation. However, the argument suggests that a measure which has been recognised as a reparative measure cannot be extended to social groups who have not suffered identity-based injustice, because that would be in contravention or violation of the underlying principle of reparation which forms part of the basic structure. For example, even if there are two measures for undertaking reparation, a constitutional amendment which inserts a provision which negates or divests the reparative nature of the measure would be violative of the basic structure.  Therefore, reservation which has been recognised as a measure to undertake reparation cannot be altered in a manner wherein it loses its reparative character.

103rd Constitutional Amendment is in Contravention of the Acknowledgement

As argued in the earlier section, the setting aside or earmarking of the strongest form of affirmative action in the form of quotas or reservation in favour of the SMIs, indicates acknowledgement on the part of the State that reservation is meant to address the specific nature of injustice or injury suffered by the SMIs on the basis of their identity. However, such acknowledgement or admission is erased when reservation, which was hitherto earmarked or set aside to specifically address the egregious injustices like casteism and sexism suffered by certain social groups on the basis of their identity, is extended to other groups, who have not been intentionally subjected to such marginalisation and subjugation on the basis of their identity.

Extending the remedy of reservation to the EWS thus amounts to conflation of the significantly different claims of EWS and SMIs. Furthermore, extending reservation to the EWS envisages the space in the sphere of higher education and employment merely as an economic good to be distributed in a distributive paradigm, rather than a means to alter the power relation and social standing in society. I therefore contend that clubbing the EWS and SMIs together for the remedial measure of reservation, conveys that in the eyes of the state, the marginalisation and deprivation faced by SMIs as well as EWS are similar in nature, and therefore it could be addressed through the same remedial measure of quotas and reservation. Further, the extension of reservation or quotas to the EWS downplays the nature of injustice suffered by SMIs, which is in terms of psychological injury to the dignity of the entire social group. Extending reservation to EWS suggests that economic deprivation is the only injustice that is faced by SMIs. Therefore, the remedial measure of reservation, which was envisaged by the Constitution as a remedy to the distinct nature of injustice suffered by the SMIs on the basis of their identity from time immemorial, gets reduced to a measure meant to undertake distributive justice.  

Importantly, Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressors believe or consider the oppressed group as their equal. By extending reservation to the EWS, the objective measure of providing reservation to the SMIs is devoid of the subjective attitude of ensuring reparation to them. Therefore, reservation is provided to the SMIs, but on the terms wherein the State can dispense with its acknowledgement and apology for the past injustice. Absence of acknowledgement and apology would mean that the State treated the SMIs the way it deemed fit.

Therefore, the Constitutional Amendment fundamentally changes the nature of the remedial measure by suggesting that the nature of injustice suffered by EWS is similar to that of the SMIs. Reservation ceases to be a measure for reparation once it is extended to those groups who have never been subjected to past injustices on the basis of their identity.

103rd Constitutional Amendment violates the Basic Structure

To enquire whether insertion of Articles 15(6) and 16(6) violates a principle which forms part of the basic structure of the Constitution, it would be pertinent to refer to the following observation by Justice HR Khanna in Indra Nehru Gandhi v Raj Narain (Indra Nehru Gandhi):

I shall for the purpose of this case assume that such a matter can validly be the subject-matter of a Constitutional amendment. The question to be decided is that if the impugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitution, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of the Constitution remains unaffected. The answer to the above question, in my opinion, should be in the negative. What has to be seen in such a matter is whether the amendment contravenes or runs counter to an imperative rule or postulate which is an integral part of the basic structure of the Constitution. If so, it would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases. If an amendment striking at the basic structure of the Constitution is not permissible, it would not acquire validity by being related only to one case. To accede to the argument advanced in support of the validity of the amendment would be tantamount to holding that even though it is not permissible to change the basic structure of the Constitution, whenever the authority concerned deems it proper to make such an amendment, it can do so and circumvent the bar to the making of such an amendment by confining it to one case. What is prohibited cannot become permissible because of its being confined to one matter (emphasis added). [Paragraph 210]

From the foregoing observation it is clear that the standard that has been set to evaluate whether a constitutional amendment violates the basic structure requires that the constitutional amendment should run counter to or in contravention of an underlying abstract principle which forms part of the basic structure. The foregoing observation strengthens my argument in the earlier section, that even if there are more than one recognised measure of reparation within the constitutional framework, a constitutional amendment divesting the reparative nature of even one reparative measure would run counter or in contravention or violation of the principle of reparation which forms part of the basic structure.

Further, in IR Coelho, the Constitution Bench made following observation:

If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down.” [Paragraph 62]

I argue that the insertion of Articles 15(6) and 16(6) infringes the essence behind Articles 15(4), 15(5), 16(4) and 16(4A), which has been recognised as principle of reparation. Relying on the foregoing observation, I argue that once a measure has been earmarked or recognised as a reparative measure, it cannot be altered in a manner that it ceases to be of reparative character. Any such constitutional amendment which introduces a provision in the constitution to change the reparative character of a recognised reparative measure, would be in contravention or would run counter to the principle of reparation, which forms part of the basic structure. In the present case, the erasure of acknowledgement which is a crucial and indispensable element of the reparation, runs counter to, or contravenes, the principle of reparation within the constitutional framework.

For these reasons, the 103rd Amendment it is unconstitutional on the ground that it violates the basic structure of the Constitution.

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)]

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.

[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)]

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.

Affirmative Action as a Remedy for Dispossession: The Judgment of the Ugandan Constitutional Court

On 19 August 2021, the Constitutional Court of Uganda handed down an interesting judgment in United Organisation for Batwa Development in Uganda v The Attorney-General. The case concerned the rights of the Batwa, an indigenous community in South-West Uganda. The Petitioners argued that over a long period of time, spanning many decades, the Batwa had been systematically dispossessed of their lands, first by the colonial government, and then by the actions of the government of Uganda. This constituted a breach of their constitutional rights under the 1995 Constitution of Uganda (such as the rights to life, equality, and a set of social, economic and cultural rights), and triggered a range of remedies, ranging from financial compensation to recognition of the right to access traditional forest land.

There are two features of this judgment that repay careful study. The first is the extent of evidence that the Petitioners brought on record to demonstrate the historical ties of the Batwa community with the land in question. This evidence took the form of individual testimonies, combined with expert analysis submitted by way of affidavit (see pgs 20 – 32 of the judgment); this expert analysis included material from the colonial archives, which demonstrated how the colonial government had displaced the Batwa in order to create game reserves. The Respondents were unable to rebut this evidence, arguing only that as of date, the Batwa were not located on forest land, and their access to it was limited to procuring some forest produce. As the Court recognised, that, of course, was a non-sequitur, because the displacement was historical.

From a legal point of view, it is the second feature that is particularly interesting. The Court located the remedy within Article 32 of the Ugandan Constitution, which provides for affirmative action:

Notwithstanding anything in this Constitution, the State shall take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.

The Constitutional Court held that the text of Article 32 indicated an affirmative obligation upon the government to undertake affirmative action measures, tailored to two requirements: first, it must be established that the claimant group is marginalised (call this the “entitlement” requirement); and secondly, that the nature of the measure must be such that redresses these structural imbalance (call this the “fit” requirement). In the present case, on the basis of the evidence before it, the Court found that it was beyond cavil that the Batwa had been – and continued to be – a marginalised group. This fulfilled the entitlement requirement, and thus triggered an obligation upon the State to introduce affirmative action measures.

In other words, therefore, the Court held that a generic affirmative action provision in the Constitution created a right in favour of marginalised groups, and vested in them the standing to approach the Court for enforcement. This is as it should be; however, it is also important to note that a generic affirmative action guarantee (as in Article 32(1) of the Ugandan Constitution) is nothing more than the principle of substantive equality, expressed in more concrete terms. Logically, therefore, what the Ugandan Constitutional Court accomplished through Article 32(1) ought, in theory, to be accomplished in Constitutions that do not have a specific affirmative action guarantee, but nonetheless subscribe to a theory of substantive equality. More to the point, in the Indian context, this shows once again how the Indian Supreme Court’s repeated statement that “there is no right to reservation” is entirely at odds with its simultaneous jurisprudence that the Indian Constitution guarantees a right to substantive equality. It is illogical to hold, on the one hand, that there is a right to substantive equality, while also holding, on the other, that people who have been deprived of this right have no remedy for it.

Back to the issue: the Ugandan Constitutional Court then went on to hold that the tailoring of affirmative action measures could not be undertaken purely through evidence by way of affidavit. It was a fact-intensive enquiry. Under Article 137(4) of the Ugandan Constitution, it was open to the Constitutional Court to refer a matter to the High Court “to investigate and determine the appropriate redress.” Availing of this provision, the Constitutional Court directed the High Court to expeditiously hear evidence and determine the matter, keeping in mind that affirmative action measures put in place “do not expose the Batwa people to further exploitation, are practically effective, and are enjoyed by all the Batwa people.” (pg 46)

It is of particular significance to note that upon finding that a State obligation of affirmative action was triggered, the Constitutional Court did not remand the matter to the government, to devise an appropriate affirmative action programme; instead, it remanded the matter to the court below, to hold (what appears to be) a trial on the issue.

Now if you look at Article 32(2) of the Ugandan Constitution, which immediately follows the affirmative action provision, it is provided there that “Parliament shall make relevant laws, including laws for the establishment of an equal opportunities commission, for the purpose of giving full effect to clause (1) of this article.” This formulation is a familiar one in the context of comparative constitutional law: rights that require structural or institutional solutions to implement are often followed by a sub-clause that delegates their implementation to the legislature (see e.g., Article 17 of the Indian Constitution, prohibiting “untouchability”). It is therefore noteworthy that the Constitutional Court nonetheless held that the crafting of affirmative action measures was a judicial task, to be undertaken after judicial consideration of evidence. In this, the judgment is somewhat reminiscent of the Indian Supreme Court ruling in NALSA v Union of India, which specifically held in favour of affirmative action for the transgender community, and the concrete form that it would take (enforcement, of course, ran into hurdles).

Consequently, the judgment sets down the crucial principle that: (a) under the Constitution’s generic affirmative action principle, it is open for groups to directly approach the Court as rights-bearers, and trigger an obligation upon the State to fashion an affirmative action programme; and (b) if the claimants are successful in meeting the entitlement requirement, then the remedy will be judicial in nature, i.e., the Court will hear evidence and determine affirmative action remedies that meet the “fit” requirement. Taken together, these principles represent a highly progressive approach to affirmative action, which firmly grounds it as a right, that can be enforced by claiming specific remedies, which can be granted even where the government chooses to drag its feet and not fashion an appropriate affirmative action scheme. Of course, this approach comes with its own risk: as has been seen around the world, the exclusion of the government from the task of fashioning social welfare schemes, and the transposal of that power to the judiciary, can bring with it its own set of pathologies. Given that, students of comparative constitutional law may be particularly interested in following these proceedings through the High Court, where the question of the appropriate affirmative action scheme will be debated in the coming weeks.

The Supreme Court’s Maratha Reservation Judgment – A Response [Guest Post]

[This is a guest post by Shrutanjaya Bhardwaj.]

This is a response to Part-II of Gautam Bhatia’s two-part critique of the Supreme Court’s Maratha judgment. In the post being responded to, Bhatia argues that the Court interpreted the provisions of the 102nd constitutional amendment—mainly Article 342A—wrongly. I will support the Court’s view by rebutting what I believe are Bhatia’s central arguments.

In brief, the issue was as follows. As Bhatia recounts, OBC/SEBC reservations in India have historically had two anchors—Centre (Parliament and President) and States (Legislatures and Governors). Both Centre and States would prepare separate “lists” of backward classes who, in the respective opinions of these authorities, ought to be recognized as OBCs/SEBCs for the purposes of benefits under the Constitution. The two lists had separate purposes. In any given State, only the groups mentioned in the “Central List” would be eligible for reservations etc. in jobs and educational institutions of the Central Government, while only the groups mentioned in the “State List” would be eligible in respect of jobs and colleges of the State Government.

The Maratha judgment put an end to this two-list system. The Court held that the 102nd constitutional amendment strips States of, and exclusively vests in the Centre, the power to identify SEBCs. The main provision under contest before the Court was Article 342A which reads as under:

“(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

According to the Court, this provision mandates exactly the same process for identifying SEBCs which has (admittedly) historically existed for identifying SCs and STs under Articles 341 & 342 respectively—i.e., only President draws up state-wise lists of SCs and STs, and once that is done, only Parliament has the power to amend the lists by adding or removing names. Just as the States have never had a role in designating groups as SCs or STs, they now have no role in designated groups as SEBCs.

Bhatia makes three broad arguments to oppose the Court’s conclusion. The first and main argument, which I shall respond to in this piece, is a textual argument which goes thus. Article 342A doesn’t say that the process it prescribes shall be “the sole process” of identifying SEBCs. In fact, the use of the phrase “Central List” in Article 342A(2)—a marked departure from the simpliciter “list” appearing in the analogous Articles 341(2) and 342(2)—shows that the list prepared by President under Article 342A is not to be the sole list of SEBCs. The President is to only draw the “Central List”; States are free to independently identify SEBCs and accordingly draw their own “State Lists”. Article 342A, thus, is “limited in its operation to the existing process only at the central level”. It follows that States still have the power to identify SEBCs parallelly, which power exists outside of Article 342A and remains unaffected by the 102nd amendment.

[For the sake of completeness, let me also state the two arguments I will not address. The first is that if the text of Article 342A is ambiguous, external aids of interpretation like parliamentary committee reports and “repeated assurances” by the relevant Ministry/Minister should have been relied on. The second is that if Article 342A is capable of two interpretations, the Court should have favoured the interpretation which advances federalism—a component of the basic structure—and preserves the States’ power to identify SEBCs.]

Plain Meaning

Textual interpretation of a provision must always start with its plain grammatical meaning. The text of Article 342A(1) reveals that the President may specify, with respect to any State, “the” groups which shall “for the purposes of the Constitution” be deemed as SEBCs “in relation to that State”. In Bhatia’s reading, this provision doesn’t say that the Presidential List shall be the sole list of SEBCs, or that this process shall be the sole process of identification of SEBCs. With respect, it says exactly that.

Most important for this debate is the word “the” occurring in Article 342A(1) right after the word “specify”. This seemingly innocuous article, known as the “definite” article, when used before the plural form of a noun, usually refers to an exhaustive or definite set of objects described by that noun. To take some examples from English language, it should be obvious that “list the items we need to buy” means list all such items, “list the students who are to be designated as class monitors” means list all such students, and “list the books that need to be procured for the library” means list all such books. Similarly, when Article 342A(1) empowers the President to specify “the” groups which shall “for the purposes of the Constitution” be deemed as SEBCs “in relation to that State”, the plain meaning rule dictates that the President will specify all such groups. The corollary is that the possibility of States being able to specify other groups is not left open by Article 342A(1).

If Parliament truly intended to preserve the States’ powers, nothing prevented more words from being added into the Article. For instance, instead of saying that the Presidential List shall define SEBCs “in relation to that State”, Parliament could have said “in relation to employment and education under the Central Government in that State”. Alternatively, Parliament could have added an explanation in Article 342A to the effect that nothing in this Article shall prevent the State Governments from preparing their own lists of SEBCs. But Parliament chose to say none of that. All that has been said is that President shall draw for every State a list of “the” groups which shall be deemed to be SEBCs “for the purposes of the Constitution” and “in relation to that State”. Absent any further qualifications, the inescapable conclusion is that Article 342A(1) exhaustively covers the subject-matter of identification of SEBCs for the purposes of the Constitution.

“Central List”

The isolated phrase “Central List” occurring in Article 342A(2) cannot alone make a difference to the above reading. Some of the things Bhatia says about this phrase are undoubtedly correct, but don’t take us very far. Yes, the phrase “Central List” is somewhat vague if not seen in its historical context. Yes, the Presidential List under Article 342A(1) is conceptually the same Central List that was being prepared by the Central Government before the 102nd amendment. But none of this implies that clause (2) contemplates or authorizes State Lists. Contrary to what Bhatia suggests, the phrase “Central List” could simply be there for abundant caution, or to make it doubly clear that henceforth there will only be a Central List.

There is good reason to prefer the second interpretation. Under settled rules of interpretation, courts must not readily assume that Parliament enacted conflicting provisions, and must try to read the provisions harmoniously so as to avoid any conflict. Bhatia’s interpretation implies that clause (2) conflicts with clause (1)—as explained above, clause (1) categorically excludes the possibility of States identifying any SEBCs, while Bhatia’s reading of clause (2) suggests the opposite. Such a conflict can be avoided by adopting the other interpretation, i.e., the phrase “Central List” in clause (2) only reinforces the idea that only the historical “Central List” shall exist while the historical “State Lists” shall stand abolished. This is also the interpretation that the majority of the Court adopted, in my view rightly.

But Bhatia rejects it; he argues that the two-list regime is so significant that its invalidation can only be done expressly. This applies even to the sovereign Parliament exercising its constituent power. He argues that if Parliament wanted to “drastic[ally]” change the historical two-list arrangement, it would have done so “in express terms, and not by implication”. Therefore, absent express words of invalidation, Article 342A(1) should be interpreted as having left the State Lists untouched.

This line of reasoning is erroneous in my view. The doctrinal question here is: When Parliament introduces a regime/scheme into the Constitution for the first time, should we presume—unless a contrary indication exists—that Parliament has defined the regime/scheme exhaustively? Respectfully, the answer is that we should. This is not only logically the correct approach (why would Parliament mysteriously leave some part unsaid?) but also a cemented principle of interpretation. Expressum facit cessare tacitum, i.e., the express mention of one thing implies the exclusion of other things. Stated differently, “expression precludes implication” (e.g., see CCI v. SAIL). Contrary to Bhatia’s argument, this maxim allows Parliament to impliedly exclude certain things simply by expressly including certain other things. Hence, once Parliament has laid out a process of identification of SEBCs “for the purposes of this Constitution”, and has said nothing about any other process by which SEBCs can be identified, the assumption should be that the ‘field’ of identification of SEBCs is now occupied by Article 342A and excludes any other processes of identification.

The Definition Clause: Article 366(26C)

If any doubt were still left, a bare reading of Article 366(26C) would cure it. This provision, also inserted via the 102nd amendment, contains the definition of ‘SEBCs’:

366. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

(26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of this Constitution;

Bhatia argues that this provision has no bearing on the issue: “we don’t know what the definitions clause actually refers to until we have first interpreted Article 342A autonomously.” Since he believes that Article 342A “itself contemplates separate powers for the centre and the state in identifying SEBCs”, he suggests that Article 366(26C) too—automatically—treats the classes mentioned in both Central and State lists as SEBCs.

This argument proceeds on a misreading of Article 366(26C). The clause doesn’t define SEBCs as the classes contemplated by Article 342A, or those merely permitted by that provision to be designated as SEBCs. Rather, SEBCs are defined as classes that are “deemed under article 342A” to be SEBCs “for the purposes of this Constitution”. This is an unmistakable reference to the deeming provision in clause (1)—and clause (1) alone—of Article 342A, which provides that the groups specified by President shall “for the purposes of this Constitution be deemed to be socially and educationally backward classes…”. Even if Bhatia’s argument about the meaning of “Central List” is accepted, the sequitur being that States still retain the power to draw up their own State Lists, it’d be a stretch to argue that SEBCs mentioned in the State Lists are “so deemed under article 342A for the purposes of this Constitution”. Even if there were any deeming, it would be under the relevant State legislation authorizing the creation of State Lists, and not under Article 342A. [This also shows that Bhatia’s argument is self-defeating: it is his stand that Article 342A(1) refers only to the Central List.]

Thus, the clear meaning of Articles 342A & 366(26C) is that throughout the Constitution, the phrase ‘SEBCs’ shall refer only to the Presidential List drawn under Article 342A(1). This shall be so irrespective of the parallel existence of State Lists framed under State laws, even assuming arguendo that such lists can be prepared.

[Note: Since I was in the team of lawyers representing the Petitioners in this case, readers may take my views with a grain of salt. I am grateful to Ayush Baheti for his inputs.]

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

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

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

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

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

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

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

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

With respect, each of these arguments is flawed.

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

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

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

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

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

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

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

A Critique of the Supreme Court’s Maratha Reservation Judgment – I: Equality

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

On May 5 2021, a Constitution Bench of the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 [“the impugned Act”]. The impugned Act had granted reservations to the Maratha community in education and public employment (as a result, the total reservation in Maharashtra had gone over 50%, which was also the subject of challenge). Three substantive judgments, spanning 569 pages, were authored. The Court framed six questions, which – for the sake of simplicity – can be divided into three main issues. First, did the 50% cap on reservations (subject to ‘extraordinary circumstances’), as articulated by some of the judges in the Indira Sawhney judgment, merit reconsideration? Secondly, was the impugned Act correct in granting reservations to the Maratha community? And thirdly, following the 102nd Constitutional Amendment, were the several states competent to identify socially and educationally backward classes within their jurisdictions, or did that power now lie only with the centre? With respect to the first two issues, the five-judge bench unanimously answered “no”. On the third issue, by a 3:2 majority (Bhat, Rao and Gupta JJ), the bench found in favour of exclusive central competence (i.e., states can no longer identify SEBCs for the purposes of reservation).

I do not propose to address the second issue in too much detail. A perusal of the record (three separate Commissions had found that the Marathas did not constitute a “backward” community, and available data backed this up) shows that Court’s conclusion on this point is difficult to argue with, even though its scrutiny arguably went beyond what existing precedent permitted. Rather, in this post, I will focus on the first question (the 50% cap), and in the next post, on the federal issue.

On the first question, I will argue that the judgments of Bhushan J. (joined by Nazeer J) and Bhat J. suffer from numerous errors of law and logic. With respect, the impact of these judgments is to entrench – and perpetuate – a duplicity that has existed in Indian affirmative action jurisprudence right from the time of Indira Sawhney: in rhetoric, the Court commits itself to a broad and substantive vision of equality, but in practice, it affirms a narrow and formal vision.

The 50% Rule: An Overview

The “50% rule” has caused significant dispute and confusion over the years. Pared down to essentials, however, the issue is straightforward, and I will set it out here before enquiring how the Court dealt – or did not deal – with it. A reading of the first part of the judgment will reveal that many of the arguments I make here were placed before the Court by Mr. Mukul Rohatgi, and so my task is primarily an expository one.

The “50% rule” was first articulated by the Supreme Court in M.R. Balaji vs State of Mysore, where it was held that reservations under Article 16(4) cannot exceed 50%. When M.R. Balaji was decided, the Indian Supreme Court believed that Articles 14, 15(1), and 16(1) embodied a formal, or “caste-blind” vision of equality, where classifications based on suspected categories (caste, race, gender etc) were constitutionally impermissible. Article 16(4) carved out a specific exception to Article 16(1), by allowing reservations. Thus, formal equality of opportunity was the rule, and reservation was the exception. As the exception could not “swallow up” the rule, reservations had to be capped at 50%.

This understanding of equality was, however, overturned by a seven-judge bench of the Supreme Court in State of Kerala vs N.M. Thomas, where a majority held that Article 16(4) was not an exception to Article 16(1), but a facet of it (or, an “emphatic restatement” of the principle). In other words, the equality code of the Indian Constitution embodied a vision of substantive equality, which took into account existing structural and institutional disadvantages. Affirmative action, thus, was a part of genuine equality of opportunity, rather than clashing with it. In N.M. Thomas, two judges also spelt out the logically necessary corollary: the 50% cap in Balaji was no longer justifiable.

It was in Indira Sawhney, however, that waters were substantially muddied. While the plurality of opinions in the judgment make culling out a ratio a difficult task (and indeed, the ratio of Indira Sawhney was in dispute in the present case), it is at least plausible to argue that the judgment did two irreconcilable things: it both affirmed N.M. Thomas, and affirmed the 50% rule (subject to extraordinary circumstances). These two positions are irreconcilable because, as a matter of logic, the 50% rule must stand or fall with the proposition that Article 16(4) is an exception to Article 16(1). The moment you accept that Articles 16(1) and 16(4) both embody a vision of substantive equality, the 50% rule makes no sense at all. Substantive equality requires you to look at disadvantage, and if more than 50% of a given population is disadvantaged (to put the point at its most abstract level), there is no reason to limit affirmative action to 50%.

Indira Sawhney, thus, was an internally contradictory judgment, despite attempts by later judgments to make it make sense by holding that 16(4) was neither an exception to, nor a facet of, 16(1), but that both had to be “balanced” against one another. For this reason alone, it merited reconsideration.

The Judgment of Bhushan J.

Now, what reasons did the Court give to decline the request for reference, and reaffirm the 50% rule? Let us first consider the judgment of Bhushan J. Bhushan J. observed, first, that only two judges in N.M. Thomas had opined on the 50% rule. This is true. It is also irrelevant. As pointed out above, the 50% rule and Article 16(4) being an exception to Article 16(1), are joined at the hip. If one goes, the other must necessarily go. Secondly, Justice Bhushan observed that “Articles 15(1) and 16(1) of the Constitution are the provisions engrafted to realise substantive equality whereas Articles 15(4) and 16(4) are to realise the (sic) protective equality.” (paragraph 155) With respect, the learned Justice provided no explanation for what he meant by “protective equality”, how it differs from “substantive equality”, and why the difference matters (if it does). Thirdly, Bhushan J. quoted a speech by Dr. B.R. Ambedkar in the Constituent Assembly to argue that the intent of Article 16(4) had always been to limit reservations to a “minority”. This use – or misuse – of Ambedkar’s speech is one of the most troubling and problematic aspects of the judgment for me, and I will address it later. Fourthly, Bhushan J. held that the judgment in Balaji was not premised only on the fact that that Article 16(4) was an “exception” to Article 16(1), but that it was a “special provision.” A close reading of the actual judgment reveals, however, that this argument is pure misdirection. In Balaji, the Supreme Court noted that:

It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4).

It is therefore clear that the Balaji Court used “special provision” and “exception” interchangeably; indeed, it could not be any other way, because the phrase “special provision” has no independent meaning: something is “special” in that it does not occur in the ordinary course of things. It is difficult to parse quite what Bhushan J. thought he had accomplished by drawing a distinction between “exception” and “special provision”, because the learned Justice failed to explain any further, and instead only repeated the Balaji dictum of 50%.

Fifthly, Bhushan J. noted that:

The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality. (paragraph 162)

This paragraph, unfortunately, suffers from the logical fallacy known as begging the question. Bhushan J. observed that the “50% rule” was required to fulfil the objective of “equality” under the Constitution as held by Indira Sawhney – while the entire argument was that this is only true if equality under the Constitution is formal equality, which was denied by N.M. Thomas (and N.M. Thomas, of course, was affirmed by Indira Sawhney). Thus, on the one hand, Bhushan J. strenuously argued that Articles 15 and 16 embodied a vision of substantive equality, while on the other hand, he equally strenuously affirmed a 50% rule that only made sense if Articles 15 and 16 were about formal equality.

The paragraph then went on to ask “what is more reasonable than to say that reservation shall … not exceed 50% of the appointment?” Unfortunately, however, this is not the mic-drop that Bhushan J. appeared to believe that it was. The answer to the question is: any figure that accurately reflects the extent of group disadvantage in any given context is “more reasonable” than a flat figure of “50%”, assuming of course that the Indian Constitution is committed to substantive equality.

Mr. Mukul Rohatgi raised a number of other arguments for reconsidering the 50% cap, which I will not discuss here: the significant issues, and Justice Bhushan’s failure to deal with them, have already been addressed. The implications of this failure were made evident when Justice Bhushan came to consider the Gaikwad Report, which had recommended reservations for the Maratha community. The Report had done so on the basis that the representation of Marathas in public employment and education was far less than their representation in Maharashtra’s population. Now, as I had clarified at the beginning of this post, I will not here consider the veracity of their claims. What is important to note, however, is that Justice Bhushan held that even if this was true, it would not be a basis for granting reservation, as it was not an “extraordinary circumstance” within the meaning of the Indira Sawhney judgment. Latching on to an observation in Indira Sawhney that had said that extraordinary circumstances might include “remote and far flung areas” where people are removed from the “mainstream of national life”, and holding that this was “illustrative but indicative” (huh?), Bhushan J. held that a finding that 80-85% of the population was “backward” (which was the reasoning given by the Gaikwad Commission) would not be a ground for increasing the reservation above 50%.

It should be immediately clear that this flies in the face of any defensible understanding of “substantive equality”. The impact of Bhushan J.’s observation is that no matter the extent of disadvantage that exists in society, no matter the caste or class composition, no matter the history or contemporary reality of oppression – all of this is irrelevant to determining the quantum of reservation. To put the matter in the abstract, even if one hypothetically proved to Bhushan J. that in a given society, 20% of the population had oppressed the other 80%, and erected enduring structural and institutional barriers to their equal participation in society, Bhushan J. would still hold that “reservation cannot exceed 50%.” To say that such a blanket proposition is in any way consistent with substantive equality is to twist words and concepts out of shape. It is also particularly ironic, given that across the world, a substantial gap between representation in the total population, and representation in a specific area, is taken as presumptive evidence of indirect discrimination.

it is therefore submitted, with the greatest of respect, that Bhushan J.’s judgment is deeply flawed in every respect with respect to the rule of 50%; in all but in name, it takes affirmative action back to the Balaji days of Article 16(4) being an exception to Article 16(1), and the Constitution of “formal equality”. One could only wish that the learned Justice had the courage of his convictions and expressly spelt this out, rather than leaving us to read between the lines.

The Judgment of Bhat J.

Let us now turn to the concurring opinion of Justice Bhat. This judgment is somewhat difficult to parse, as it contains a smattering of quotes from figures such as Franklin Roosevelt and Anatole France, undertakes a comparative survey of reservation jurisprudence in the USA, Canada, and South Africa without explaining why those jurisdictions have been selected or what the purpose of comparative analysis is, embarks upon an entirely irrelevant excursion into various schemes and programs for the uplift of disadvantaged sections, delivers a moral sermon on alternatives to reservations, and puts out a number of observations on the concept of merit that are entirely at odds with its conclusions. Negotiating through the surplusage, however, one arrives at the following lines of reasoning. First, Justice Bhat held that a majority in Indira Sawhney had “decisively” ruled in favour of the 50% cap. However, as pointed out above, even if that is true, a majority in Indira Sawhney had also upheld N.M. Thomas, and the two propositions are contradictory. This is why the request for reconsideration of the 50% rule by a larger bench was justified. Secondly, Justice Bhat cited the principle of stare decisis, and the need for stability in the law. (paragraph 11). One might have been minded to accept this argument, were it not for the fact that the learned Justice’s new-found respect for stare decisis was strangely absent a little while ago when, as part of a bench led by Arun Mishra J., he saw no problem with overruling seventeen Supreme Court judgments on Section 24 of the Land Acquisition Act, which had consistently been followed by High Courts across the country. With due respect, stare decisis is a question of principle, not of convenience.

Thirdly, Bhat J. held that Indira Sawhney was based on the principle of “balance” – i.e., “balancing” equality of opportunity and reservations. However, as I have pointed out above, a “balance” that takes the form of a 50% cap is just a subtler way of rephrasing the “exception” paradigm: in no objective sense are you being “balanced” if (to repeat the hypothetical) 20% of a society oppresses 80%, but reservation is fixed at 50%. Once again, therefore, the word “balance” simply assumes the conclusion in the premise. This was made crystal clear in paragraph 34 of Bhat J.’s judgment, where the learned Justice noted that:

Upon examination of the issue from this perspective, the ceiling of 50% with the “extraordinary circumstances” exception, is the just balance what is termed as the “Goldilocks solution” – i.e. the solution containing the right balance that allows the state sufficient latitude to ensure meaningful affirmative action, to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence) is retained. 

It is entirely impossible to reconcile this paragraph with N.M. Thomas: here, Justice Bhat stated unambiguously that in his view, the “essential content” of equality is at odds with “affirmative action” – and not that affirmative action fulfils the demands of substantive equality. As with Justice Bhushan, this was a return to the Balaji era of the exception, only without expressly saying so.

I could not locate further substantive arguments in this concurring opinion. It is worth pointing out, however, that in a section considering the “larger issues” around affirmative action, Bhat J. noted how the concept of “merit” is, in itself, inherently discriminatory, decontextualised, and ignores situational inequalities. There is a deep irony here, because the entire framework of “balancing” equality of opportunity against reservation is premised on an uncritical acceptance of the concept of “merit”, which frames the understanding of formal equality of opportunity. If merit had to be understood contextually, then reservations and equality of opportunity would not be at odds, and nothing would have to be “balanced.”

(Mis)Using Ambedar’s Speech

Let me, finally, come to the issue of Dr. Ambedkar’s speech. There are at least four reasons why Bhushan J.’s use of Ambedkar’s Constituent Assembly speech – where he stated the reservation would be confined to a “minority” – is entirely flawed. First, no self-respecting theory of constitutional interpretation endorses deriving constitutional meaning from one speech delivered by one member of the Constituent Assembly. At the very least, the learned Justice needed to do his homework on whether Ambedkar’s view was the view of the Assembly as a whole. He did not do so. Secondly, even if Ambedkar’s view did represent the Assembly as a whole, it was a view about how Article 16(4) ought to be applied – not about the meaning of 16(4) itself. As Ronald Dworkin famously argued, there is a distinction between the “concept” of equality, and competing “conceptions” of the concept. And as long as the Constitution is framed at the level of concepts, the framers’ views about what specific conceptions it might take, are to be accorded no greater deference than anyone else’s view. Thirdly, in a jurisprudential tradition that continues to uphold Maneka Gandhi as a crown jewel of constitutional interpretation, it is rather jarring to find a sudden love for original intent. Recall that the evidence for the fact that the Constituent Assembly intended Article 21 to be limited to “procedure established by law” was far, far stronger than a single B.R. Ambedkar speech: it involved multiple debates, multiple failed amendments, and a cast-iron consensus that due process was to be kept out of the Constitution. Maneka Gandhi ignored all of that. I do not here intend to get into an argument about whether that was right or wrong, but the Court cannot say “I will use original intent when it supports my preferred conclusion, and discard it when it doesn’t.” That, to repeat, is a constitutionalism of convenience.

And finally, Ambedkar’s speech – when understood in context – is not as clear-cut as it might seem. I have argued elsewhere that Ambedkar’s speech was made in the context of a debate over the introduction of the word “backward” in Article 16, to qualify the word “classes”. Ambedkar’s reconciliation of the “competing claims” of (formal) equality of opportunity and adequacy of group representation was based on a qualitative addition to Article 16 (the word “backward”), and not a quantitative addition (a numerical cap, which Ambedkar discussed in his speech, but consciously refrained from writing into Article 16(4)). I do not here claim that my reading is necessarily correct, but that it is an alternative reading that, at the very least, precludes easy – and lazy – conclusions about the interpretation of Article 16(4) based on Ambedkar’s speech.


There is one point in the judgment where, to use an old proverb, one can see the mask slip. In paragraph 164 of his opinion, Justice Bhushan made the extraordinary statement that:

To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy (sic) is an essential feature of our Constitution and part of our basic structure.

What is one to make of this? All one can say is that the bogeyman of reservations leading to “caste rule” belongs in a WhatsApp forward, not in a judgment of the Supreme Court. One should perhaps not dignify this further with serious analysis. I do think, however, that this observation is particularly revealing. In both Justice Bhushan’s judgment, with its exhortations about how the country has progressed in the seventy years since Independence, and in Justice Bhat’s judgment, with its lengthy detours into various government schemes for disadvantaged classes, there is a clear undercurrent of opinion: “reservations have gone on too far and too long, we really should get rid of them now.” Justice Bhushan’s statement about “caste rule” sees those fears bubble to the surface but, as pointed out above, the undercurrent is present throughout, and ultimately seems to play a role in the Court’s repeated incantation about how the “50% rule” is so integral to the very idea of equality. I have previously argued that the history of reservations jurisprudence in India can be divided into three phases: the “exception phase”, the “facet phase”, and the “balancing phase”. With recent Supreme Court judgments repeating themselves about how there is “no right to reservation” (another overruling-of-N.M. Thomas-by-stealth move), coupled with today’s judgment, it is possible that a fourth phase – where the Supreme Court moves to limit and roll-back reservations while continuing to maintain the rhetoric of substantive equality – might have begun.

Postscript: EWS?

Does today’s judgment have any impact on the constitutional challenge to EWS reservations? Justice Bhushan expressly declined to comment on the issue. However, given the insistence of both Justice Bhushan and Justice Bhat about how the 50% rule is “integral” to equality, and given the fact that equality is undisputedly a part of the basic structure, it becomes difficult to see how the Supreme Court can reach any conclusion other than striking down EWS reservations as unconstitutional. That said, we wait to be surprised!

Horizontal Reservations and the Persistence of the Myth of Merit

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

Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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

Horizontal and Vertical Reservations

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

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

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

The Question in Saurav Yadav

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

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


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

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

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

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

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

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

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

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

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

Guest Post: Sub-Classification in Reservations – II

[This is a guest post by Abhinav Chandrachud.]

In State of Punjab v. Davinder Singh (27 August 2020), a Constitution Bench of the Supreme Court headed by Justice Arun Mishra recently referred E.V. Chinnaiah v. State of AP, (2005) 1 SCC 394, to a larger bench for reconsideration. In Chinnaiah, the court had held that governments cannot introduce a special sub-quota, within the SC and ST quota, in favor a few castes or tribes who are more backward than others on the list. Davinder Singh’s judgment now disagrees with this view but raises some interesting questions.

A sub-quota for OBCs:

In 1962, the State of Mysore issued an order reserving 50% of seats in medical and engineering colleges for OBCs. Within this 50% quota, 22% of seats were reserved for those OBCs who were “more backward” than others. Communities which were far below the average educational levels of the state were entitled to opt for the “more backward” sub-quota. In M.R. Balaji v. State of Mysore, AIR 1963 SC 649, a Constitution Bench of the Supreme Court held that this sub-classification of OBCs into backward and more backward was impermissible. The court said that Article 15(4) of the Constitution only allows reservation for the “really backward classes”, while Mysore had given reservations to nearly 90% of its population by including not-so-backward communities in the list of OBCs. However, relying on Justice Chinnappa Reddy’s eloquent judgment in K.C. Vasanth Kumar v. State of Karnataka, (1985) Supp SCC 714 (paragraph 55), the Supreme Court in Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217, held that sub-classification was permissible among OBCs (Justice B.P. Jeevan Reddy- paragraphs 802, 843; Justice P.B. Sawant – paragraph 524). In other words, governments are now free to create sub-quotas within the OBC quota.

“Disturbing” the presidential lists:

In Chinnaiah, the Supreme Court was considering the constitutional validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. Under Article 341 of the Constitution, the President notifies a list of Scheduled Castes for each state, which can thereafter only be modified by Parliament. The State of Andhra Pradesh divided this list into four categories, and conferred separate quotas on each group based on their inter se backwardness – Group A (1%), Group B (7%), Group C (6%), Group D (1%). The Supreme Court said that the state government could not do so. There was only one presidential list of SCs for the entire state, and since the government of Andhra Pradesh could not add or remove a caste from the list, it could not allot separate sub-quotas to various castes in the list either.

Relying on Ambedkar’s speech in the Constituent Assembly, the Supreme Court in Chinnaiah hinted that if governments are given the power to sub-classify within the list of SCs specified by the President under Article 341, they might do so for political reasons – e.g., by conferring a generous sub-quota on a numerically large and politically important SC caste, to the exclusion of others. The court said that the object of Article 341 was to eliminate political factors in the identification of SCs, and the government had no power to “disturb” the presidential list. It was held that the SCs and STs specified in their respective lists form a class by themselves, and regrouping or reclassifying them violates the Constitution.

However, as a previous post on this blog argues, the problem with Chinnaiah was that it treated the entire list of SCs in a state as a homogenous category and presumed that each caste within the list was as backward as the other SCs. The court in Davinder Singh later noted that this was simply not true. There are several castes included within the presidential list of SCs in a state, but some of them may be ahead of others. Chinnaiah did not allow governments to take this into account and introduce sub-quotas for the more backward SCs and STs.

Enter Davinder Singh:

In State of Punjab v. Davinder Singh (2020), the Supreme Court was called upon to examine the validity of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The law created a sub-classification within the SC community and said that 50% of the SC quota would go to the Balmikis and Mazhabi Sikhs in Punjab. In 2014, a bench of three judges of the court opined that Chinnaiah needed to be reconsidered by a larger bench. Now, a bench of five judges in Davinder Singh has asked for the case to go before an even larger bench.

The court relied on the 102nd amendment to the Constitution, passed in 2018, which introduced Article 342A into the Constitution. This provision says that the President must, in consultation with the Governors, prepare a list of socially and educationally backward classes (SEBCs) for each state, a list which can thereafter only be modified by Parliament. Reading this amendment, the Supreme Court said that the constitutional provisions which deal with identifying SCs, STs and SEBCs (i.e., Articles 341, 342 and 342A) are now “pari materia” – each group has a constitutionally recognized list which can only be modified by Parliament, and therefore, the court cannot disallow sub-classification within the SC and ST lists on the one hand, while allowing it in the SEBC list on the other. Instead, held the court, governments can use rational criteria to create a sub-quota within the SC or ST list as well.

The Implications of Davinder Singh

However, the Davinder Singh judgment of the Supreme Court raises some important questions:

Firstly, does Davinder Singh dilute M. Nagaraj v. Union of India, (2006) 8 SCC 212 and Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396? In Nagaraj and Jarnail Singh, a Constitution Bench of the Supreme Court had held that before the government introduces any reservations for communities other than SCs and STs, it must collect quantifiable data which show that those communities are, in fact, backward. No such data collection exercise is necessary for SCs and STs who are presumed to be backward once they are included within the lists under Articles 341 and 342 of the Constitution. After Davinder Singh, a view may be taken that once a community is set out in the list of SEBCs under Article 342A of the Constitution, it too is presumed to be backward and no such data collection exercise is thereafter necessary to show that the community continues to be backward.

Secondly, in the recent Maratha reservations case [Dr. Jishri Patil v. Chief Minister of State of Maharashtra, (2019) SCC Online Bom 1107 (paragraph 110)], a Division Bench of the Bombay High Court had held that Article 342A(2) contemplates two lists of SEBCs – a central list and a state list, and that the state list of SEBCs is unaffected by the amendment. In other words, Article 342A only applies to the central list of SEBCs – state governments are free to prepare and modify their own list of SEBCs. If this is correct, then Article 342A is not “pari materia” with Articles 341-342, contrary to what was held in Davinder Singh. There is no separate central and state list of SCs and STs. On this interpretation of Article 342A, the Chinnaiah court would have reasoned that sub-classification is permissible within the state list of SEBCs, but not in the central list under Article 342A, because states are free to modify their own lists of SEBCs, but not the central list constitutionally prepared by the president. The court in Davinder Singh has not taken these arguments into account.

Thirdly, the judgment in Davinder Singh seems to have said that sub-classification within the list of SCs and STs should only be carried out by state legislatures, not by the executive government. It has been a well-settled principle of constitutional law, since Indra Sawhney’s case, that reservations can be brought about not merely through legislation but also by executive order. In Indra Sawhney, the Supreme Court mostly upheld an executive order which gave effect to the Mandal Commission report. However, in paragraph 43 of the Davinder Singh judgment, the Supreme Court has said that state legislatures are competent to create sub-classifications within the lists of SCs, STs and SEBCs. Did the court mean to say that sub-classification is not permitted by executive order? This may need clarification.

Finally, it is also now perhaps time for us to reconsider whether a judgment can only be overruled by a bench of larger strength. Look at the time that has been wasted in constituting larger benches in this case. A three-judge bench opined in 2014 that Chinnaiah needed reconsideration. A five-judge bench has, in August 2020, agreed and asked for a reference to an even larger bench. Will it take another six years for the larger bench to overrule (or uphold) Chinnaiah? In a system afflicted by backlog and delay, this is a rule that we can easily do without. It makes little sense – a bench of 7 judges can, by a slim 4-3 majority, overrule a unanimous judgment of five judges. In other words, four judges (in a 7 judge bench) can overrule the unanimous opinion of five judges in Chinnaiah. When a case has been decided by five or more judges, there is no reason why a bench of coordinate strength should not be able to overrule it.

Guest Post: Sub-Classification in Reservations

[This is a guest post by Anuna Tiwari.]

Contemporary debate around reservations has turned inwards, from reserved-versus-non-reserved, to one within the reserved communities. Several state Acts and fact-finding commissions have voiced the need for sub-classification and sub-categorization within the reserved SCs to account for their inherent gradations. One such Act by the Andhra Pradesh Government was held unconstitutional in the Supreme Court’s decision of EV Chinnaiah vs State of Andhra Pradesh (2005 1 SCC 394). Another such law has now been put to review by a larger bench of the Supreme Court by a Constitution Bench on 27th August 2020 in State of Punjab vs Dalvinder Singh.

The Supreme Court in EV Chinnaiah examined the Andhra Pradesh (Rationalization of Reservation) Act which dealt with such a conflict between sub-castes in Andhra Pradesh. The Andhra Act had bifurcated the Presidential list into four groups and had apportioned the 15% quota among them on the basis of degree of backwardness and proportional population of each sub-caste. The state argued that reservations in the state were unduly benefitting only a handful of the SCs who were relatively advanced, at the cost of the most deprived within them. The Supreme Court had held that the said sub-classification was unconstitutional as the SCs were a class by themselves, classified sufficiently (as such for the purpose of Article 14) under Article 341, and that the sub-classification could only be made by the Parliament under Article 341(2).

In Dalvinder Singh the issue of sub-classification has resurfaced. Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act 2006 provided that 50% of the total seats reserved for the Scheduled Castes be offered to Balmikis and Mazhabi Sikhs. This was challenged on the basis of the Supreme Court’s decision in EV Chinnaiah, before the Punjab & Haryana High Court which deemed it unconstitutional. In appeal, the Supreme Court has now held that (i) the state could provide preference to a class within the Scheduled Class/ Scheduled Tribe (¶ 48) ; that (ii) allotment of specific percentage out of the reserved seats  would not violate Article 341, 342 and 342A and that (iii) a federal structure put both the State Legislature and the Parliament under a “constitutional directive” for the upliftment of the SCs/ STs and backward classes (¶49). The Court has referred the matter to a 7-judge bench, endorsing the view that the EV Chinnaiah was at variance with the realities of the community.

Among the foremost critiques of EV Chinnaiah is the Supreme Court’s off-the-mark perception of the Scheduled Castes as a “homogenous” group. The Court had observed that they were a homogenous group incapable of being further sub-divided, much less by the State Legislature. Dalvinder Singh (inter-alia) by taking note of the massive anthropological and empirical data pointing to anything but homogeneity, has overcome this perception for the better.

It is a welcome move so far as the Court acknowledges that the states are entitled to account for social realities (¶38,47) and that sub-classification is just as much as facet of equality and social justice as reservations themselves (¶44) .

The “guise of homogeneity” 

In Dalvinder Singh, the Court rectifies the EV Chinnaiah Court’s reluctance to engage with the Ramachandran Raju Commission report and its findings. Justice Sinha had in EV Chinnaiah declared the redundancy of the report stating:

“It may not be necessary for us to delve deep into the question as to whether the factual foundation for enacting the said legislation being based on a report of a Court of Inquiry constituted under Section 3 of the Commission of Inquiry Act 1952 known as Justice Raju Report is otherwise laudable or not.” (¶65)  

In Dalvinder Singh, the Court comes to terms with the various factual reports carrying empirical evidence of inequality among the SCs. As they say, a problem well stated, is problem half solved. The statement of the issue itself duly acknowledges the relevance of these reports.

“Whether the action based on intelligible differentia to trickle down the benefit can be said to be violative of Articles 14 and 16 of the Constitution and whether sub-classification can be said to be an act of inclusion or exclusion particularly when various reports indicating that there is inequality inter se various castes included within the list of Scheduled Castes”. (¶29)  

Vis-à-vis the rest of the society, the degree of contempt for some sub-castes is greater than the rest. Further, internal schisms both mimic and amplify such prejudice. For instance, the Sadashiv Commission found that while some among SCs (touchable) reside alongside the upper dominant castes, some among the SCs continue to live in the peripheries of the villages and are deemed polluted by the other SCs. In Andhra, though both Malas and Madigas reside in the periphery of the village, there is hierarchy in “marginality”: the Madigas (ritually lower) are farther away from the main village than the Malas. The occupation of Malas (weaving and agriculture labour) were deemed cleaner than those of the Madigas (leather tanning, show making etc.) The notions of impurity on the basis of occupation can be seen (with somewhat equal, if not greater intensity) within the SCs. The reform movement leadership of Andhra was heavily under-representative of the Madigas: less than a dozen among the 130 Malas. In the data available from 2001 census, Adi-Andhras, another economically forward group,  showed education level of a 6.3 as against a 2.7 of Madigas, the average among SCs overall being 3.7. The 2011-Census state-wise data set on literacy and educational attainments of around 600 SC groups reveals that there is variance within the SCs. While 11% held a degree in one quarter of the SCs, only 2% of the other quarter had a degree. The Supreme Court, is itself not an absolute stranger to the nature of SCs under the Constitution and has in the past recognized the SCs as an “amalgam” rather than an immutable whole (NM Thomas vs. State of Kerala, 1976 AIR 490).

How much can be left to the “subjective satisfaction” of State

The Chinnaiah Court’s perception of homogeneity is flawed. But the greater issue is the Court’s treatment of factual reports in reservation cases. After Jarnail Singh vs Lachhmi Narayan Gupta, quantifiable data is not a pre-cursor to reservations (in promotions) (Jarnail Singh ¶21).  And apparently, after Mukesh Kumar vs State of Uttarakhand, affirmative action turns on states’ ‘subjective satisfaction’. The Supreme Court in EV Chinnaiah had looked the other way on considerable empirical evidence, thereby questioning the states’ prerogative to act on the same. However, the Court in Mukesh Kumar Gupta held that “inadequacy of representation is a matter within the subjective satisfaction of the State” and that the State could very well rely on “material it has in its possession already or [that] it may gather such material through a Commission/ Committee, person or authority(¶12). Here the Court held that while the State could choose to act on such material, it could not be compelled to do so since Article 16(4) is merely an enabling provision. This reasoning sets us back in time to the pre-NM Thomas days where Article 16(4) was considered an exception to equality. It also tells us why ‘subjective satisfaction’ is a double-edged sword, even though it may appear desirable in an expansionist context like EV Chinnaiah’s.

Clearly, what the states make of “subjective satisfaction” is not uniform. While Andhra Pradesh and Punjab expanded the scope of reservations to reflect social realities, the Uttarakhand Government instead decided to rule out reservations in all posts in public services in the overlooking the data on their backwardness. Therefore, the Court’s push to state action based on statistical data in Dalvinder Singh is desirable. The outcome of the reference should infuse greater consistency and certainty on the state’s obligations to act on such data.   

Over-broad reading of Article 341(2) by EV Chinnaiah. 

EV Chinnaiah’s discontents go beyond misplaced notion of homogeneity. Another argument against the Andhra Pradesh Act was that constitutional intention behind Article 341 forbade sub-classification by the state legislature (EV Chinnaiah ¶22). Justice Santosh Hegde observed that the Scheduled Castes come into existence only by virtue of the Constitution and the exclusive power to include or exclude from, and thereby to sub-classify the presidential list vests solely with the Parliament.

Justice Hegde cited Dr. B.R. Ambedkar who had once said that power is vested in the President to guard against the “political factors having a play in the matter of disturbance in the schedule so published”. He further read this “disturbance” widely to mean not just inclusion and exclusion from the presidential list, but also re-classification:

“Therefore any executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-classifies the various castes found in the Presidential List will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.”

It is difficult to understand this extrapolation (read: re-writing) of a plain-worded provision. Article 341(2) only deals with inclusion and exclusion from the list rather than inter se sub-classification of the enlisted groups. Also, nothing in the context of his statement suggests that Dr. Ambedkar had sub-classification or re-arrangement, re-classification in mind. As Dalvinder Singh clarifies only now, sub-classification does not amend the list in any way (¶45,49).

Justice Hegde’s reading of Article 341(2) assumes greater importance since it is employed to set off a Part III claim. The doctrine of reasonable classification is conspicuous in its absence and its non-application goes unexplained. This is a limitation that the Court imposes on itself by ignoring the Commission’s findings of internal social, educational and economic divisions between SCs in Andhra Pradesh, (belittling them as ‘micro-distinctions’). The Court in Dalvinder Singh discards this reading of Article 341(2) and clarifies that sub-classification could be done within the lists without attracting Article 341(2) (¶48).

The case for sub-classification

The administrative definition of SCs under Article 366(24) states that those castes, groups, races, tribes and communities that are grouped under Article 341 by the President of India are scheduled castes for the purpose of the Constitution (The Constitution of India 1950, Article 366(24)).  Socially, SCs are categories of people who were at the bottom of the Indian society owing to their low status in the ritual hierarchy and their spatial-cultural isolation from the society. The Constitution identifies SCs on the basis of “untouchability”. The first census tests for identification revolved around incidence of disability such as debarment from using temples, polluting touch, occupational disability etc. The 1950 Scheduled Order took educational and economic criteria as indicators of inclusion into the list. Presently, “social, educational and economic backwardness” arising out of traditional untouchability is used as the primary indicator of inclusion in the presidential list. Since the criteria of distinguishing SCs (as a whole) is untouchability and relative impurity- based on occupation, residence, ritual status, eating habits etc., relative impurity among the Dalits assumes importance. If the same ritual untouchability persists within the SCs, it should adequately justify sub-classification- not as an exception but as an extension of the entitlement.

Both historical and contemporary factors indicate unequal access to education and distinct positions in the social hierarchy. Neither of these is a “micro-distinction” (as EV Chinnaiah calls them in ¶57) simply because the exact same markers of discrimination are rampantly employed in segregating the SCs from the rest as stated above. The internal segregation is not wiped out by “shared-status” feeling. If the former has pre-existed the Constitution, the latter cannot be magically conjured, notwithstanding constitutional classification. The SCs are heterogeneous and unequal. Failing to classify unequals violates Article 14 (K. T. Moopil Nair v. State of Kerala, AIR 1961 SC 552) 

Reservations emerge in response to “entrenched and cumulative nature of group inequalities” and thus accrue to the SCs on the basis of their group-identity ascribed at birth and inseparable from their beings (Marc Galanter, Competing Inequalities, Page xxv). Dalvinder Singh (barring its use of the term “largesse”)( ¶42) holds the mirror up to EV Chinnaiah on this very crucial aspect. EC Chinnaiah’s “justice to one group at the cost of injustice to another group” line of reasoning tends towards the notion of ‘justice’ championed by those opposing reservations in general. K Balagopal in his scathing critique of the judgement termed it as an argument against reservations, rather than just sub-categorizations. He laments that “at the end what we have is a judgement purportedly against subdivision of the scheduled caste reservation quota, but which is in fact replete with arguments against reservations as such.”  Dalvinder Singh’s rooting of sub-classification in the same principle as reservation itself (¶44) is thus a long overdue moral contrast.

Conclusion: Imposed homogeneity and Creamy layer exclusion must meet half-way.

EV Chinnaiah disallows sub-classification without engaging with the reasonable classification argument. Jarnail Singh on the other hand justifies creamy layer exclusion of the SCs. Both are extreme approaches. Jarnail Singh glorifies the capacity of reservations to wipe-out social disability. It conflates group-disability and an individual’s attainment of a certain advancement. Exclusion from reservation cannot wipe out persisting social disability, and cannot be the ideal. Nearly 60% reserved positions in the Central Governments and Ministries lie vacant as in March 2020. Glaring vacancies in the reserved positions across cadres and institutions indicate problems with this exclusion. If some are excluded and the rest are socially incapacitated (in the absence of sub-classification), the optimum representation would elude us. Reservation must come to the downtrodden sub-castes, not at the cost of, but alongside the rest of the sub-castes.

Special quotas can be created to counter extreme disability, like those for Arunthathiars. The Tripura High Court had in 2015 ordered filling up of vacant positions by general candidates in the absence of a SC candidate. This is undesirable if representation is to be ensured. Rather than fixed quotas, vacant reserved positions are better preserved by a preference-based layering model. There could be layering of the groups preferentially in an order of decreasing level of social disadvantage, the most disadvantaged sub-category being the most preferred. In the absence of any candidate from a sub-category higher on the preference order, only a candidate from the next preferred sub-category could fill in. Rather than the fixed apportionment-quota model (as adopted by the Andhra Pradesh Act), the layering model would ensure that the vacancy is retained within the reserved fold, while the most marginalized sub-category’s disadvantage is partly offset by the preferential order.

The EV Chinnaiah bench’s reluctance to sub-categorise closely resembles that of the central government in categorising the SCs, apprehending that the “official recognition of their low-ness” would perpetuate discrimination (Indian Statutory Commission 1930:V, 1341 as cited in Marc Galanter, p. 122). Both the fears, facially salubrious, presume homogeneity and that caste-consciousness would do more harm than caste-blindness in the law.  The courts may be limited in their power to formulate rights-based policy, they are extremely potent in mobilizing the claimants, enlarging the scope of their claims and  triggering state action: Vishakha is a case in point. Until notions of caste and impurity persist, we can neither (like EV Chinnaiah) treat distinct groups as one, nor (like Jarnail Singh) discount prejudice against group identity and exclude individuals. Extensive empirical data already at the disposal of the state must not go to waste and a middle way must be found. The Supreme Court in Dalvinder Singh thus expiates for opportunity that it lost in EV Chinnaiah and sets the debate on this middle path, rolling again (¶39).

[The author thanks Professor Aparna Chandra for comments on a draft of this piece.]