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.]

Guest Post: The Supreme Court’s 100% Reservation Judgment – Two Inconsistencies

[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.]


[This is a guest post by Anant Sangal.]


The jurisprudence of the Supreme Court (‘Court’) on affirmative action is rife with contentions. This article will explore two such shortcomings in a recent judgment of the Court. On 22nd April 2020, a five-judge Constitution Bench handed down its decision in Chebrolu Leela Prasad Rao v. State of Andhra Pradesh (‘Chebrolu’, Civil Appeals Number 3609 and 7040 of 2002). The petitions challenged the constitutional validity of the Government’s Office Memorandum 3 of 2000, which provided 100% reservation in respect of appointment to the posts of teachers in the Scheduled Areas. The G.O.M. was issued by the Governor of the erstwhile state of Andhra Pradesh, exercising his powers under Paragraph 5 of Schedule V of the Indian Constitution.

Among a variety of interesting questions the Court answered in Chebrolu, many of which also stretched beyond the typical row pertaining to the validity of 100% reservation of seats for the Scheduled Tribes, I will be limiting my discussion only around the Court’s observation on the very nature of the affirmative action and the method adopted by the Court in reviewing the G.O.M.

Reservations and Equality: An ‘Exceptional’ Relationship

While deciding on the validity of the 100% reservation of seats, in paragraph 116 of the judgment, Justice Arun Mishra, speaking for the Court observes,

116. In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, it was laid down that reservation should not exceed 50 percent; however, a little relaxation is permissible with great care. Reservation is an exception to the general rule. The quantum of reservation should not be excessive and societally injurious.

However, while deciding on whether the impugned notification is a mode of classification under Article 16(1) or is merely a tool to provide reservations to a certain identified class under Article 16(4) of the Constitution, Mishra J. notes as follows:

137. […] Clause 4 of Article 16 is an instance of classification arising out of Clause 1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4) are all facets of equality. In Indra Sawhney (supra), it was held that Article 16(4) is not an exception to Article 16(1) but a part of equality.

This brings into question various interpretations used by Mishra J. to make two contradictory observations in the same judgment. For Mishra J., the reservation of seats  is an exception to the general norm (of equality) [116]. However, all forms of affirmative action minus reservation of seats (such as by waiving off fees, relaxed age criterion, etc., which are also examples of the State’s policy of affirmative action) discussed in the jurisprudence on Article 16(4), are instances of furthering the concept of equality underlying Article 14 [137].

Therefore, while holding that reservations are an exception to the general norm, it actually appears that the Court’s discomfort stems from the amount of reservation extended to the Scheduled Tribes. This is visible in Mishra J.’s discussion in paragraphs that precede and succeed paragraph 116. For the Court, reserving 100% seats is violation of equality as a norm because in paragraph 115, Mishra J. writes how 100% reservation “would amount to unreasonable and unfair and cannot be termed except as unfair and unreasonable.”. At various other instances, the Court discusses the ‘exceptional’ situations for which the Court in Indra Sawhney allowed the 50% ceiling to be breached.

However, when the Court returns to the discussion on the nature of classification for Scheduled Tribes under Article 16(1) for the purposes of allowing them affirmative action under Article 16(4), it uses the ‘reservation as a facet of equality’ principle. This is done so that the demand of the State, arguing that the notifications under challenge create only a new category under Article 16(1), is not legitimized, and the Scheduled Tribes covered by the notifications continue to be treated under Article 16(4) itself. This, in turn, is because projecting the STs as a new class under Article 16(1) will take them out of the ambit of the 50% ceiling under 16(4), which was contemplated by the Court in M.R. Balaji (1962) and reaffirmed three-decades later in Indra Sawhney.

Be that as it may, the Court’s skepticism about the 50% ceiling as pierceable yet extendable only up to a ‘reasonable’ number is symptomatic of the debate, which was put to rest by the Court in N.M. Thomas (1975). Before N.M. Thomas, in Rangachari (1961), the Court was deciding if Article 16(4) extended to reservations in promotions too or limited its application only to the stage of appointment. While the Court held that reservations under Article 16(4) are an exception to Article 16(1), it is interesting how Justice Wanchoo in paragraph 31, who was writing a minority opinion, held that it would be wrong to understand that all reservations which take place in public employment, are reserved by virtue of protection granted under Article 16(4), because such protection would militate against the principle under Article 16 (1).

This was cemented by the Court later in its decision in M.R. Balaji. In Balaji, while holding that Article 15(4) is an exception to Article 15(1), the Court capped the quantum of reservations at 50%. By limiting the amount of reservations, the Court reaffirmed the point that reservations, if unlimited, are a threat to equality. By overturning the position held by Rangachari and Balaji, in noting that 16(4) was a facet of 16(1) and not an exception, the majority in NM Thomas did a credible job. However, by not touching the numerical cap posed on the quantum of reservations, in many senses, both Thomas as well as Indra Sawhney continued to approach affirmative action with a certain degree of suspicion.

The Court in Chebrolu is representative of the infirmities borne by the majority benches in M.R. Balaji and N.M. Thomas. Mishra J. reignites a debate, which was hardly discussed after its final settlement by the majority in Indra Sawhney. It is not acceptable to the bench how 100% seats could be reserved for the Scheduled Tribes, for they view such reservation as antithetical to the idea of equality, but reasons given for this position are not satisfactory.

Rather, Mishra J. crafts a new line of defence to argue the ‘equality’ aspect. He holds that by reserving all the seats for the Scheduled Tribes, not only the people belonging to any unreserved category are affected, but such action affects even the Scheduled Castes, the OBCs, and even those STs, who settled in the area after 26th January 1950 [the G.O.M. conferred the 100% reservation only to those ST families who were residing in that local area from 26th January 1950]. Irrespective, the Court’s inability to grapple with the idea of 100% reservations is certainly not doctrinal and reveals itself when the Court openly says that such kind of reservation is an “exception to the general rule” in paragraph 116.

Blurring the Standards of Review

The second shortcoming is a common phenomenon in the general jurisprudence of writ courts in India. In paragraph 115, the Court holds that the action of granting 100% reservation is nothing but ‘unfair’ and ‘unreasonable’. Later, in paragraph 125, the Court holds that such reservation is ‘irrational’ and ‘arbitrary’ and violative of Article 14 of the Constitution of India. In paragraph 127, it holds that the action is both ‘unreasonable and arbitrary’, and finally in paragraph 135, the G.O.M. No.3/2000 is constitutionally invalid because it is “not only irrational, but it violates the rights guaranteed under Part III of the Constitution”.

For the Court, there seems to be hardly any distinction between what is ‘unfair’, ‘unreasonable’, ‘irrational’, and ‘arbitrary’. This is because the Court uses these terms interchangeably at various points and does not provide any reasons for why the G.O.M. is either only arbitrary or unreasonable or irrational; or, in another situation, why the notifications are both arbitrary and unreasonable along with being irrational too. Not only this, for the Court, the distinction between a law to be reasonable and the same to not be arbitrary is simply non-existent. For that, it fails to establish that a law may be reasonable yet arbitrary or the other way round.

All these modes of review developed as possible manifestations of the right conferred by Article 14 and therefore, I will briefly argue how the distinction between these tests requires the invocation of each of these terms only in certain, distinct situations. This is despite the fact that all these principles became different markers for fulfilling the right to equality. However, as Tarunabh Khaitan argues, a law which validates torturing of any human being may be termed as being unreasonable; however, it does not perpetuate a culture of inequality or arbitrariness. For implementing such law, the very authority which decided to implement the same could be termed to be acting whimsically or arbitrarily. However, this form of arbitrariness is not the same as the substantive arbitrariness of the law or the arbitrariness which may be perpetuated by implementation of such arbitrary law. In short, the two kinds of arbitrariness at play are different in their inherent nature.

That said, the same law would have been unreasonable as well as arbitrary, had it said that any person belonging to “X” community could be picked up and tortured for no reason. It is unreasonable because it legitimizes torturing of a human but is arbitrary, because it authorizes that torturing for a selected community could take place, without having any rational or intelligible basis.

On the question of unreasonableness, while the kind of laws such as the ones which were under challenge in F.N. Balsara (1951) could be termed as being ‘unreasonable’ (because the prohibition on selling of foreign liquor to all but to the military personnel was based on an unreasonable classification), however, as Abhinav Chandrachud and Khaitan have independently argued, the Court’s usage of the unreasonableness test has been dominated by the Wednesbury unreasonableness, a highly deferential standard used for reviewing administrative actions of the State. The test of arbitrariness, as propounded in E.P. Royappa (1973), could be termed as a manifestation of the rational basis review test. This is a position that Khaitan has generated after interpreting the decision of the Court in McDowell (1996). He argues that legislation could not be struck down for being only arbitrary, and that a consequent violation of a particular right conferred by the Constitution also needs to be established.

The foregoing discussion shows that the Court in Chebrolu used these different tests, without determining which one of them was actually attracted. For instance, it might be a case that the action of conferring cent percent reservation to the Scheduled Tribes could be ‘unreasonable’ or even ‘irrational’ because it does not leave any scope for catering to the demands of any other minority. The rational view would demand adjusting of all the minorities (SCs and OBCs) within the scope of reservations, which might then even be absolute (if circumstances make a case for such a conferment). However, it will be wrong to term it “arbitrary” because the class of people who are conferred with this reservation, belong to a category already protected within the scope of Article 16(4). It does not provide the benefit to the socially and economically affluent communities, which are not even distantly envisaged by Article 16(4).

The Supreme Court’s (New) Reservations Judgment and its Discontents

[Editorial 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.]


This Friday, a two-judge bench of the Supreme Court handed down a judgment holding that Article 16(4) of the Constitution is only an enabling provision, and does not confer a “right” to reservations. The context of the case was as follows: in 2012, the government of Uttarakhand decided to fill up the posts in the state’s public services without providing reservations to Scheduled Castes (SCs) and Scheduled Tribes (STs) (paragraph 5). This was challenged, and after a round of litigation before the Uttarakhand High Court, that court directed “the State Government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in Government services which would enable the State Government to take a considered decision on providing or not providing reservation.” (paragraph 7)

Appellants argued before the Supreme Court that the judgment of the Uttarakhand High Court was wrong, as “there is no constitutional duty on the part of the State Government to provide reservations.” Once, therefore, the government had taken the decision (in 2012) not to provide reservations, that decision could not be challenged (paragraph 8). Appellants further argued that as the collection of “quantifiable data” was a precursor to providing reservations, it followed ipso facto that “there is no necessity for collection of any quantifiable data after the Government has taken a decision not to provide reservations.” (paragraph 8)

The Court agreed with these submissions, and also agreed with its 2016 judgment in Suresh Kumar Gautam v State of UP, where these contentions had been accepted. In paragraph 12 of the judgment, it noted that:

It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the State. The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed.

This, however, was limited to situations where the State made provisions for reservation. That, however – the Court held – was purely discretionary. Consequently:

As the Government is not bound to provide reservation in promotions, we are of the opinion that there is no justifiable reason for the High Court to have declared the proceeding dated 05.09.2012 as illegal. (paragraph 15)

In other words, there was no obligation upon the State to collect data in order to deny reservations.

There are, however, two problems with this line of reasoning, that I set out below.

Article 16 and Substantive Equality

The first is the Court’s characterisation of Article 16(4) as a purely enabling provision, and its conclusion from that that inadequacy of representation is a matter within “the subjective satisfaction” of the State. This, however, is at odds with the scheme of Article 16 of the Constitution as interpreted by the Supreme Court. As readers of this blog will be aware, until the mid-1970s, the Supreme Court’s position was that Article 16(4) was an exception to the guarantee of equality of opportunity set out in Article 16(1). In other words, 16(4) carved out a space (for inadequately represented sections) where the normal principles of equality of opportunity would not apply. It was, of course, up to the State whether or not it chose to avail of this exception, and provide for reservations.

In NM Thomas, however, that position changed. It was held that Article 16(4) is not an exception to, but a facet of Article 16(1). That changed interpretation flowed from the Supreme Court’s evolving understanding that the Articles 14-15-16 “Equality Code” under the Constitution was not about bare formal equality, but about substantive equality – i.e., equality that took into account existing social and structural disadvantages, and required the State to remedy them. This understanding of constitutional substantive equality has never seriously been questioned after N.M. Thomas, and has recently been reaffirmed (albeit in the contexts of Articles 14 and 15) in Navtej Johar and Joseph Shine.

Consequently, if Article 16(4) is a facet of Article 16(1), then it necessarily follows that what Article 16(1) guarantees is a right to substantive equality of opportunity (and 16(4) is – in the words of NM Thomas – an “emphatic restatement of that right.” Consequently, while it is correct to say that there is no right to reservations (as the language of 16(4) is indeed enabling), there is a right to substantive equality. This, in turn, means that if the status quo involves formally equal treatment of individuals in substantively unequal circumstances – when it comes to appointments or promotions in public services – Article 16(1) is breached.

The Uttarakhand High Court was well aware of this distinction (as it also was in another judgment it delivered a few days later, which I discussed here). Consequently, it did not direct the government to provide reservations. What it did do was direct the government to collect data on inadequacy of representation, so that a decision could be taken on how to remedy existing substantive inequality. This – as Karan Lahiri has argued previously on the blog – is a reading of the scheme of Article 16 that places a “power plus duty” upon the government.

As Lahiri writes

… a constitutional provision conferring power/discretion on a State authority, couched in permissive language, is to be treated as a provision containing a power coupled with a duty, if the failure or conscious omission on the part of such authority to act would nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle emerging from a mosaic of constitutional provisions.

Lahiri then argues that if Article 16(4) was to be read as a purely enabling provision that conferred no duties, this would mean that while there was an obligation upon the State to collect data before it granted reservations, there would be no such obligation if it chose not to do so. However, this would mean that:

There is a hurdle created to pull up backward groups, but none for pulling them down, or for ignoring them entirely. This, I believe, is inconsistent with the equality code of our Constitution, and Article 16 itself contains no textual basis for such asymmetry. It is this asymmetry problem that can be remedied if the Supreme Court recognizes the fact that Article 16 contains within it an enabling power coupled with a positive duty.

 

Notice that the asymmetry problem is taken care of by NM Thomas’ reading of Article 16: because that reading makes the pulling up of “backward groups” an obligation upon the State. On the Supreme Court’s reading, however, it is made explicit that the government must collect data if it wants to provide reservations/substantive equality (“pull up”), but is not obligated to do any such thing if it wants to deny reservations/substantive equality (“pull down/ignore”). This is obviously at variance with the constitutional scheme.

What about NALSA?

The second problem is a more straightforward one. Recall that in NALSA v Union of India, the Supreme Court had taken judicial notice of the fact that the transgender community was underrepresented in government employment, and on that basis, had specifically directed affirmative action measures under Article 16. It follows from this that if indeed it has been found that a group falls within the scope of Article 16(4), the demands of substantive equality under Article 16(1) require the State to take measures to bring about real and effective parity. Thus, while admittedly there is no free-standing right to reservations, there is a right contingent upon a finding that a particular group is underrepresented.

If that is the case, however, than the obligation can simply be defeated if the State chooses not to conduct the data collection exercise at all. Consequently, it follows from NALSA that data collection to determine inadequacy of representation is indeed an obligation upon the State, as that is the pre-requisite for the further affirmative action that NALSA found mandatory.

Conclusion

It is submitted, therefore, that the Supreme Court’s judgment is at variance with NM Thomas, with NALSA, and indeed with the scheme of Article 16 and the Equality Code. Once we agree that Article 16(1) guarantees a substantive right to equality of opportunity, it necessarily follows – in the words of Lahiri – that a coherent reading of the scheme of Article 16 reveals that the discretion of the State under 16(4) is not unbounded. 16(4) codifies a “power plus duty”: the State is empowered to decide upon reservations, but it has a duty to collect information pertinent to that decision. Any other reading would defeat the basic idea of substantive equality under Article 16(1).

Guest Post: The 103rd Amendment and a New Typology of the Basic Structure

(This is a guest post by Nivedhitha K.).

The 103rd Constitutional amendment enables 10% reservation for the ‘economically weak’ of the forward caste. Prior to the amendment, the Indian Constitution only provided reservation for the ‘backward class’, where the determination of backward class was based on ‘caste’. Therefore, until recently, reservation has always been ‘caste-based’.  The 103rd amendment revamps the structure of the equality code by enabling reservation solely based on ‘economic capacity’.

A Constitutional amendment can be struck down only if the basic structure of the Indian Constitution- as propounded in the case of Kesavananda Bharati v. State of Kerala – is ‘damaged’. In this essay, I will analyse a series of cases that deal with the basic structure doctrine, and develop a working test to challenge Constitutional amendments. The 103rd Constitutional amendment will then be tested upon the evolved working test.

Concepts, Facets, and Conceptions

An analysis of a series of cases involving the basic structure doctrine, elucidates that the basic structure operates at three levels of abstraction: concept, facet, and conception. Consider the 99th Constitutional amendment, which substituted the NJAC in place of the collegium for the appointment of judges, and was challenged in the NJAC case. The five-judge bench struck down the amendment on the ground that ‘primacy of the judiciary’ in appointment of judges is an integral part of ‘independence of the judiciary’, which – in turn – is an integral part of the basic feature of democracy. Therefore a question of whether the ‘independence of the judiciary’ is damaged, was answered with reference to ‘primacy of the judiciary’. A similar three-level abstraction was made in the case of PUCL as well. Though the case did not involve the challenge of a Constitutional amendment, the observations in the case would be useful for our analysis.  In the PUCL case, provisions of the Election Rules, 1961 that allowed a person who exercised NOTA to be identified, wre challenged on the ground of violation of secrecy of ballots.  The bench while holding that the NOTA button is to be set up in the EVM, observed that secrecy of ballots was ‘fundamental’ to a free and fair election, which in turn is a basic feature of the Indian Constitution.

Therefore, three levels of abstraction could be identified through the PUCL case and the NJAC case. In the NJAC case, the abstraction is in the form of democracy –> independence of the judiciary –> primacy of the judiciary in judicial appointments. In the PUCL case, the abstraction is in the form of democracy –> free and fair elections –> secrecy of ballot. All the three levels of abstraction are a part of the basic structure. Through the remaining part of the essay, the three levels of abstraction will be termed as concept (‘democracy’), facet (‘independence of the judiciary’ and ‘free and fair elections’), and conception (‘primacy of the judiciary’ and ‘secrecy of ballots’). 

A concept is a basic principle that governs the Constitution such as democracy, rule of law, secularism, federalism, and equality. They are broad principles that are usually identified with reference to preamble of the Indian Constitution. A facet is a particular aspect of the concept, which is independent of the structure of the Constitution. It is a means to the end of the ‘concept’, without which the concept would be nugatory. On the other hand, a conception is a subset of the facet, and a specific understanding of the facet that is Constitution-specific. A conception could exist in different forms, of which, a few might form a part of the basic structure and few might not. For instance, in the case of RC Poudyal, an amendment was challenged on the ground of violation of the one person- one vote conception. The court observed that alteration of the one person- one vote conception would not damage the basic feature of democracy since different conceptions of democracy could exist. However, certain conceptions might be fundamental to the concept within the constitutional framework, an alteration of which will damage the concept (which is a basic feature). This position was elucidated in the PUCL case, wherein it was observed that the conception of ‘secrecy of votes’ is fundamental in a ‘constituency-based election’, and not in a ‘proportional representation system’. In Poudyal, the conception was not a basic feature, while in PUCL the conception was a basic feature. Therefore, conceptions may or may not be fundamental to the concept. If it is the former- it is a basic feature, else it is not.

Crucially, how are facets and conceptions that are basic features identified? Though all basic features are identified through judicial recognition, the degree of intervention (for identification) differs. Facets can be identified through (what I define as) the “manifestation and interpretation” approach, and the conceptions by the “interpretation approach” alone. According to the manifestation approach, the facet is ‘per se’ a clear understanding of the concept. For instance, the identification of free and fair election as an integral part of democracy, did not involve a lot of jurisprudential debate. However, certain facets are either in their nascent stage of jurisprudential development, or are subject to conflicting views. For instance, the jurisprudence surrounding equality were undergoing evolution, until MN Thomas, where both formal and substantive equality were recognised as facets of equality. In such cases, it would not be appropriate to identify facets (that are basic features) through the manifestation approach; instead the interpretation approach is to be used.  Through the interpretation approach, a two prong test is to be undertaken. Firstly, judicial pronouncements should have held that they are facets of the concept, and secondly, those facets should have been recognised as basic features, expressly or through necessary implication.

On the other hand, a conception is identified solely through judicial interpretation, because these are Constitution specific. In order to determine as to whether a conception is a basic feature, an in-depth analysis is to be undertaken. The judiciary would decide with regard to the structure of the Constitution, provisions and the silences of the Constitution. Let me explain this through an example. Federalism is a basic feature of the Constitution; the autonomy – in principle – of the constituent units is a facet of federalism (‘per se’ aspect of federalism). Conceptions of federalism are numerous. One conception is that the residuary power is to belong to the centre, while another conception is that it shall belong to the state; the centre could hold consultations with the constituent units (state), before implementing an international obligation, or might not hold consultations. Each of these conceptions are Constitution-specific. In India, the conception of the centre holding the residuary power is a part of the concept of Indian federalism, which might not be for the US. Similarly, consultations with the state on state subjects, that the international obligation covers, maybe a conception that is integral in Australia, but not in India. Therefore, unlike identification of facets, a Constitution-specific approach will have to be undertaken to identify the conceptions. As stated above, a conception may or may not be a basic feature. A conception (after identification through a Constitution-specific approach) will be a basic feature, only if it is integral to the functioning of the facet. In order to identify as to whether it is integral to a facet, judicial pronouncements and structure of the Constitution shall be used as an aid. So, if conceptions violate the facet, they will be unconstitutional. If they are not violative of the facet, they might or might not be basic features- depending on how integral they are to the facet.

Judicial pronouncements to identify a Basic Feature

In order to identify conceptions and facets that are basic features through judicial pronouncements, it is first to be established that judicial pronouncements could be used to identify basic features. Judicial pronouncements have been used to identify basic features, and to test the violation of basic structure in the past. Y V Chandrachud J, in the election case, addressed the question of whether excluding the election of the prime minister and the speaker from the ambit of judicial review would violate the basic feature of equality. To conclude that it violated the basic structure, he tested the provision on the intelligible differentia classification test propounded in Anwar Ali Sarkar. This approach was followed in I. R Coelho as well. Y K Sabharwal CJ while delivering the decision observed, “The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of law” (paragraph 42). He analysed the transformation undergone by Article 21 from AK Gopalan to Maneka Gandhi, and held that broad interpretations must be used to identify any abridgment of the basic structure.

Finally, in the NJAC case, a submission was made that a basic feature could be identified only through plain reading of the provisions of the Constitution. Khehar CJ disagreed with the submission and observed that the basic feature is to be identified by reading original plain provisions and the interpretation placed on it by the courts. He observed, “In the above view of matter, it would neither be legal nor just to persist on an understanding of the provision(s) concerned merely on the plain reading thereof as was suggested on behalf of the respondents. Even on a plain reading of Article 141, we are obligated to read the provisions of the Constitution in the manner they have been interpreted by this court” (paragraph 299). The second judges and the third judges’ case had read ‘consultation’ with the judiciary in appointment of judges to mean ‘concurrence’. This conception – i.e., that judicial independence required judicial primacy in appointments – that was established through interpretation was regarded as a part of the basic structure in the NJAC judgment.

Facets of Equality are Basic Features

Having established that judicial interpretations could be used to determine whether a facet or a conception is a basic feature, I will now establish that egalitarian equality and formal equality are facets of equality, and are basic features of the Constitution. Before addressing this question, a preliminary question of whether fundamental rights can be a part of the basic structure is to be answered. The general perception is that Kesavananda Bharati held fundamental rights to not be a part of the basic structure. However, in IR Coelho, Khanna J’s judgment in Kesavananda Bharati was construed to hold that fundamental rights are a part of the basic structure, and it was the right to property that was held not to be a basic feature. Hence the majority in the Kesavananda Bharati case – as interpreted in Coelho – did regard fundamental rights as a part of the basic structure.

Equality has been recognised as a basic feature in quite a few cases. In Ashoka Kumar Thakur, Balakrishnan CJ observed, ‘the principle of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness’ (paragraph 119). Similarly, in the case of M. Nagaraj, it was held that ‘equality is the essence of democracy and, accordingly a basic structure of the Constitution’ (Paragraph 27). Likewise, a portion of Article 329A was struck down for its violation of the basic feature of equality in the election case by Y V Chandrachud J. Therefore, equality (which is a concept) is a part of the basic structure.

I now aim at establishing that substantive equality and formal equality are facets of the concept of equality, and are basic features of the Constitution. A facet, as explained above, is a means to the end of concept, which is Constitution independent. In the case of MN Thomas, substantive equality and formal equality were held to be facets of equality, after a decade of jurisprudential arguments surrounding the subject. But the facets were not ‘clear manifestations’ of equality, which is clear from the fact that it was evolved after a dozen cases had debated on the issue. Therefore, in order to establish that the facets are basic features, the interpretation approach is to be used. The two-pronged test is applied. Firstly, judicial interpretation must have regarded equality and substantive equality as facets of equality. This test is fulfilled, with reference to MN Thomas. The second test is that the facets should have been held to be a basic feature, expressly or through necessary implication. The essence test, and the judgment in Nagaraj and Indra Sawhney will be used to identify that facets of substantive and formal equality are a part of the basic structure by necessary implication.

The ‘essence test’ was propounded in IR Coelho and accepted in NJAC. It was observed in IR Coelho, “It cannot be held that the essence of the principle behind Article 14 is not a part of the basic structure. In fact, the essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense” (Paragraph 109).  The essence of equality as provided in the Constitution is its ability to provide for both substantive and formal equality. In Nagaraj, a question arose as to whether providing for consequential seniority in reservations pertaining promotions would violate the basic structure. The amendment was tested on whether Art 16(1) was violated. The bench held that it cannot be said that the insertion of the concept of ‘consequential seniority’ abrogated the structure of Art 16(1). Further, in the case of Indra Sawhney (2000), it was held that if the creamy layer is not excluded from the ambit of reservation, then it would amount to treating unequal’s equally, violating Art 14 and 16(1) – the basic features of the Constitution (paragraph 65 and 27).  Though it was not expressly observed that Art 16(1) which provides for substantive equality is a basic feature of the Constitution, the same could be construed through necessary implication because the amendments were tested on Art 16(1) for violation of the basic structure doctrine. Formal equality has been expressly recognised as a basic feature in Indra Sawhney as it was held that non exclusion of the creamy layer would amount to treating unequals equally(which is a principle guiding formal equality).

Therefore, through the above observations, it is proved that substantive and formal equality are facets of equality, and are basic features of the Constitution.  

The Alteration Test

It has been argued by Gautam Bhatia, that only if the entire equality code is abrogated would there be a violation of the basic structure doctrine, and the parliament is qualified to prescribe different forms of equality. Bhatia’s argument is based on the Nagaraj judgment, wherein the constitutional validity of Art 16(4A) and Art 16(4 B) was in question. In Nagaraj, the revamp of the equality code was upheld because it was regarded that none of the conceptions that were basic features were altered. It was observed that the substitution of consequential seniority in place of the catch up rule was not violative of the basic feature of equality, because the catch up rule was not a constitutional requirement, but was judicially evolved through ‘service jurisprudence’. However, other judicially evolved conceptions such as the 50% ceiling limit, the concept of creamy layer, compelling reason of backwardness, inadequacy of representation, and overall administrative efficiency were regarded as constitutional requirements. Therefore, Nagaraj was an attestation that alteration of a conception that is a basic feature would violate the basic structure of the constitution- it was just that none of the conceptions that were altered in Nagaraj were regarded as basic features. 

It may also be argued that Balakrishnan CJ in Ashok Kumar Thakur observed, “the principle of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the directive principles of state policies” (Paragraph 119). This objection would not hold good for two reasons. Firstly, in the instant case, the facet of equality- as in this case substantive equality- itself is a basic feature. Secondly, the observation was made on the premise that ‘abrogation’ of the basic structure and not ‘alteration’ is the test to determine the violation of the basic structure.

However, Madan Lokur J, in the NJAC judgment, correctly clarified that the Kesavananda Bharati case did not propound the abrogation test, but rather propounded the ‘alteration test’. He observed, “the Bench that decided Kesavananda Bharati were of the opinion that it is enough to declare a constitutional amendment as violating the basic structure if it alters the basic structure. Undoubtedly, some of the learned judges, have used very strong words in the course of their judgment, etc. But when it came to stating what is the law actually laid down, the majority decided that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution” (Paragraph 797). The reading down of the NJAC amendment was primarily because of the substitution of alteration test in place of the abrogation test.

Consolidating my arguments above, basic structure exists in three levels of abstraction – concept, facet, and conception. A facet is either identified through the manifestation approach or the interpretation approach. If the facet cannot be identified manifestly, because the jurisprudence surrounding it is subject to differing views, then the interpretation approach is to be used. Through the interpretation approach, it is not sufficient if it is proved that they are facets of the concept, but it must also be proved that the facets are basic features. Using this approach, it was established that both formal and substantive equality are facets of equality, and are basic features. I then explained the possibility (and necessity) of identifying basic features through principles established by judicial interpretations; this argument helped in establishing that the facet of substantive equality is a basic feature. The golden triangle of Articles’ 14, 19 and 21, which invokes the test of arbitrariness, has also received the stamp of a basic feature in the cases of M. Nagaraj and Coelho. In Nagaraj, it was held that the test of ‘reasonableness’ is a basic feature. Therefore, the 103rd constitutional amendment would now be tested for violation of the basic feature of ‘reasonableness’ and ‘formal and substantive equality’.

The test of arbitrariness and Formal Equality

Three impacts arise on the inclusion of Articles’ 15(6) and 16(6), which strike at arbitrariness and substantive equality. Firstly, through the amendment, ‘economically weaker section’ of the forward castes and the members of the backward class are treated at par with each other by providing them with reservation. A person belonging to the backward class under Article 15(4) is disadvantaged on three parameters- social, economic and educational. On the other hand, the class introduced under Article 15(6) would only be disadvantaged economically.

Secondly, explanation to Article 15(6) states that the ‘economically weaker section’ shall be notified by virtue of ‘family income’. If a threshold limit is prescribed to determine the family income, then a person who falls below the poverty line and a person who falls below the prescribed threshold but above the poverty line would be treated alike.

Thirdly, Article 16(6) provides for reservation in jobs for the economically weaker section without any requirement of proving the ‘adequacy’ of representation, while on the other hand Article 16(4) states that a person belonging to backward class, to be eligible for reservation, has to prove that his class is not adequately represented. Therefore, for a person to be eligible for reservation under Art 16(4), he will have an extra obstacle to surpass, unlike the reservation provided under Art 16(6).

Any positive steps that are taken to provide for egalitarian equality must be guided by the principle underlying formal equality- which is to treat equals equally, and unequal’s unequally. Through the first two effects, two unequally placed classes are treated equally, violating the basic structure of formal equality. All the three effects would fail the test of arbitrariness that runs through the golden triangle as well.

Violation of Substantive Equality

My next argument against the constitutionality of the 103rd amendment is that it violates the basic feature of substantive equality. Let us now go back to the three levels of abstraction of basic structure- concept, facet and conception. Art 16(4) and 15(4), which permit reservation in educational institutions and jobs on the basis of caste are conceptions of substantive equality since it is one of the forms of achieving substantive equality under the Indian Constitution. Without going into the question of whether the conception of ‘reservation solely on the basis of caste’ is a basic feature, we will analyse as to whether reservation solely based on economic criteria (which is a conception of equality (and substantive equality)), is a basic feature. Recall the first section, wherein I explained that certain conceptions are basic features and a few are not.  To identify if they are basic features, judicial pronouncements shall be taken into consideration. Reference is made to the nine-judge bench decision in Indra Sawhney for this purpose. The bench made two observations on using economic determinants for the purpose of reservation. Firstly, economic criteria cannot be solely used to determine ‘backward classes’ under Art 16(4). Secondly, reservation solely based on economic criteria will not be permitted under Art 16(1). The first observation would not be of support to our case since the observation was made with regard to a specific class- the ‘backward class’- which cannot be imported to a different class that has been created (the economically weak class). However, the second observation would support our case. The observation surely restricts executive and legislative actions to provide reservation purely based on economic criteria. But my contention is that the conception of ‘prohibiting reservation solely on economic criteria’ is a basic feature. This conclusion is arrived at on basis of the interpretation approach with the aid of MN Thomas.

The Supreme Court in MN Thomas held that Art 16(4) is not an exception to Art 16(1), but is one of the methods for achieving equality under Art 16(1). Art 16(1) prescribes substantive equality, wherein positive actions are to be taken to establish factual equality. Therefore, 16(1) prescribes the facet of equality – substantive equality, and Article(s) 16(4) and (the impugned) 16 (6) are conceptions of substantive equality. Conception of substantive equality can only exist to the extent of which is permissible under Art 16(1) (the facet) since Art 16(1) is an all-encompassing provision- with regard to reservation in jobs. Any observation on Art 16(1), would hence be applicable to the different conceptions of reservation. Therefore, if reservation based on economic capacity cannot be brought under Art 16(1), it cannot be included through 16(6).A conception that alters the facet (substantive equality) which is basic feature, violates the basic structure doctrine. Therefore, by reading Indra Sawhney and MN Thomas together, a conception that reservation shall not be solely based on economic criteria is established. Since the 103rd amendment alters this conception and it is to be struck down.

Hence, the 103rd amendment is unconstitutional, for it alters the facets of formal equality and substantive equality, and violates the test of arbitrariness.

The Uttarakhand High Court on Reservations and Article 16(1)

A Full Bench of the Uttarakhand High Court has just delivered an interesting judgment on the question of reservations and Article 16(1) of the Constitution. In Dhananjay Verma v State of Uttarakhand, the issue before the High Court was a straightforward one: could the State provide reservations for a group of people who fell outside the category of backward classes of citizens who were not adequately represented in State services? In the present case, reservations had been provided for sportspersons domiciled in the state of Uttarakhand. Sportspersons, admittedly, did not fall within the scope of Article 16(4), which specifically authorises reservations in State services. Consequently, were they entitled to reservations – and if so, under which Article of the Constitution?

On the constitutional issue, Chief Justice Ranganathan – writing for the Full Bench – held that reservations under the Constitution are authorised not merely by Article 16(4), but also by 16(1) [“equality of opportunity”]. The reasoning of the Full Bench was straightforward: it had been clearly established by N.M. Thomas and Indira Sawhney that Article 16(4) was not an exception to Article 16(1), but a facet – or a restatement – of it. This meant that 16(4) did nothing more than give concrete expression to the principle already contained within 16(1) – the principle of substantive equality. For this reason, even in the absence of 16(4), reservations could be sourced from 16(1)’s guarantee of equality of opportunity, as long as they met the basic threshold of reasonable classification.

While this line of reasoning – and the conclusion – seems unexceptionable, Courts in India have been remarkably hesitant over the years in affirming this logical extension of the Thomas-Sawhney principle. In the pre-Thomas days, of course, when Article 16(4) was considered to be an exception to Article 16(1), the situation was different: as the Patna High Court held in Sukhnandan Thakur (1955), over a strong dissent by the Chief Justice, reservations for ex-freedom fighters were unconstitutional, as they did not fall within the scope of Article 16(4). Two years after Thomas, though, the Punjab & Haryana High Court, in Jagdish Rai, took note of how Thomas had radically altered constitutional jurisprudence. It upheld reservations for ex-armed forces personnel, on the basis that under Article 16(1), a “just proportion of the posts should be given to those who, because of a peculiar handicap, may not stand a chance against those not so handicapped.” 

After that, however, the development of law – until Dhananjay Verma restated it yesterday – has been almost negligible. Part of the reason for this, I would suggest, is that judges have balked at the potentially radical consequences of this doctrine. Not only does it open up the scope of reservations to any group that is faced with structural or systemic barriers, but also, as I have argued in The Transformative Constitution:

“… if the principles underlying Article 16(4) are now ‘facets’ of Article 16(1), then it must follow that—as Galanter realized immediately after the judgement in N.M. Thomas was delivered—an individual who feels that she has been substantively disadvantaged by reason of her group membership has a right to approach the Court and demand that this inequality be mitigated. Of course, this radically transforms the relationship between individual and the State, when it comes to questions of structural inequalities and substantive barriers to access. After N.M. Thomas, the State does not merely have the power to remedy these inequalities, but has a duty to identify and remedy them—a duty for which it is answerable in a court.” 

As Karan Lahiri has argued before on this blog, the concept of a “power + duty” is not foreign to Indian constitutional jurisprudence. It would, however, radically alter our understanding of Article 16, even though it is a logical consequence of Thomas/Sawhney. And interestingly, the Uttarakhand High Court’s Full Bench appeared to have balked at that conclusion as well, setting up an interesting tension within the judgment. Because after holding that reservations could be sourced to Article 16(1), the High Court nonetheless refused to issue a mandamus to the government directing it to implement the quota for sportspersons, and instead left the issue to the discretion of the government.

There are a few things to note about this. The first is that this makes the judgment internally contradictory: the Full Bench could not both have held that reservations were sourced from Article 16(1), and that the issue remained purely discretionary. This is because Article 16(1) is framed as a right (to equality of opportunity), and a right whose enforcement is at the discretion of the State is no right at all. Secondly, the Ranganathan CJ justified this view by invoking the separation of powers, and observing that a mandamus to the State to implement reservations would amount to legislation. While the High Court’s concern about the separation of powers is to be genuinely appreciated in an age where it seems to matter less and less, on this point – with respect – it got its wires crossed. As Lahiri has explained, the duty aspect of “power + duty” does not refer to a duty to carve out reservations, but a duty to collect the facts and evidence that will show whether or not reservations are required (for a particular group), upon the principles of substantive equality. The mandamus, therefore, would be limited to just that – something well within the scope of the separation of powers – and not a mandamus to legislate. And lastly, in NALSA v Union of India, the Supreme Court did order reservations for the transgender community, after it found that the community was disadvantaged along a host of parametres. Consequently, there existed precedent even for a judicial order of reservations following upon the relevant finding of substantive disadvantage and denial of equality of opportunity within the meaning of Article 16(1).

Conclusion

The Uttarakhand High Court’s judgment is a welcome and lucid restatement of the law. Its clear holding that Article 16(1) is the constitutional source of reservations – and that groups other than the 16(4) groups can be granted reservation subject to reasonable classification – has been long overdue. That said, however, the High Court stopped short: carrying through with its reasoning, it also ought to have clarified that reservations form part of the right to substantive equality, and that 16(1) imposes a duty upon the State at least to conduct the necessary data-gathering exercise that would serve as a pre-requisite towards implementing the promise of substantive equality underlying Article 16.

Perhaps that will be the task of the Supreme Court, if this judgment is appealed.

Reservations in Promotions and the Idea of Efficiency: B.K. Pavitra v Union of India

[Editorial 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 the 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.]


This morning, a two-judge bench of the Supreme Court delivered a fascinating judgment in B.K. Pavitra v Union of India, concerning the relationship between reservations in promotions for Scheduled Castes and Scheduled Tribes [SCs/STs], and issues of seniority. The facts were as follows: in 2002, the state of Karnataka enacted a law stipulating – in effect – that consequential seniority would follow upon the promotions of SC/ST employees. To put it in simple language: if a reserved category employee (A) was promoted before a more senior colleague (B) by virtue of A belonging to the reserved category, then – in the higher level post – A would now be senior to B (when, eventually, the latter would get promoted as well).

Readers familiar with reservation will know that this issue – bitterly contested over many decades – was eventually set at rest by amendments to Article 16(4A) of the Constitution, that authorised consequential seniority in cases of reservations in promotions. In Nagaraj, while upholding the amendment in question, a Constitution Bench of the Supreme Court also held that the government was obligated to first collect data demonstrating “inadequacy” of SC/ST representation in the services, their “backwardness”, and the impact on “efficiency”, before it could enact laws in accordance with Article 16(4A). In 2017, the Supreme Court then found that the Karnataka law did not comply with Nagaraj, and was therefore unconstitutional (B.K. Pavitra – I). In response, the Karnataka government commissioned a study [“the Ratna Prabha Committee Report”], and based on the results of the study, (basically) re-enacted the earlier law.

The constitutional challenge to the law raised a host of issues. It was argued that Karnataka had impermissibly “overruled” the judgment in Pavitra – I by re-enacting the law that had been held to be unconstitutional, and doing it retroactively, to boot. It was argued that the bill had been wrongly sent for Presidential assent. It was argued that the study on the basis of which the law was passed was flawed. And it was argued that the law was unconstitutional because it failed to exclude the “creamy layer.” In this essay, I will not discuss all of the above issues: on some points, such as legislative overruling, the Court essentially synthesised and restated existing law; readers interested in the subject may read the judgment for a clear and lucid exposition of the principles. What I want to focus on, rather, are some of the novel issues that arose, as well as the novel treatment that the Court accorded to older issues.

Standards of Judicial Review

As the Chandrachud J. correctly observed at the beginning of the judgment, this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State’s data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations (with consequential seniority) in promotions (paragraph 4).

The petitioners argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature. The Respondents contended, on the other hand, that these questions were within the “subjective satisfaction” of the State (as had been held in Indra Sawhney), and that it was the State that was in the best position to “define and measure merit.”

In response, the Court noted that, as a preliminary point, it would have to set down the parametres of judicial review in a case like this. These parametres, it held, would be based on two mutually reinforcing principles: the first was the general principle that the executive was best aware of prevailing conditions. This is nothing more than the familiar presumption of constitutionality. The second principle was more specific: in the context of reservations, questions such as adequacy of representation would be left, at the first instance, to the subjective satisfaction of the State. This was because, as Chandrachud J. noted, the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. (paragraph 95). Applying these principles to the Ratna Prabha Committee Report, Chandrachud J. observed that the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining “inadequacy of representation.”

A few things follow from this discussion. The first is that the Court adopted a deferential attitude towards the State’s collection of data, and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. In other words, the Court recognised the crucial point that constitutional goals are to be advanced by all three wings of the State, and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State’s subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. Note, also, what follows: this principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself. In a case where – for example – the challenge is on the basis of a violation of civil rights, the Court may well elect to take on a more interventionist approach to the reliability of the data. In the specific context of reservations, though, given the constitutional text, and the clear responsibility of the State, this the Court’s approach has much to recommend it.

Interrogating Efficiency

Now, of course, it might be argued that the Court ought to have been more interventionist, because the case did indeed involve a violation of rights – the Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by Chandrachud J. in the subsequent section where, relying upon the judgments in N.M. Thomas and Subba Rao J.’s dissenting opinion in Devadasan, he correctly observed that it was the principle of substantive equality – and not formal equality – that underlay the Constitution’s equality code. As Chandrachud J. observed, at paragraph 107:

There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.

Readers may consult the following paragraphs for an account of the Constituent Assembly Debates, the the place of reservations in advancing the Constitution’s transformative character. This discussion, however, segued into what is perhaps the most fascinating part of the judgment. Recall that, according to Nagaraj, the government was also required to collect data on whether reservations in promotion would affect “efficiency” in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so.

In response, Chandrachud J. undertook a critique of the concept of “efficiency” itself. In paragraph 119, he 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.

This needs some careful unpacking. What Chandrachud J. is effectively arguing against here is an account of “efficiency” that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure “individual merit”, independent of an individual’s group affiliation. This is what efficiency is about, and it must be set off and “balanced” against group-based affirmative action. However, this account has been challenged throughout our history (starting with Subba Rao J.’s dissenting opinion in Devadasan), and here Chandrachud J. takes up the challenge. At the heart of this reasoning is the acknowledgment that assumptions about what people are (i.e., their “merit” or “efficiency”) cannot be separated from what has been done to them (i.e., structural and social privileges, often the product of centuries of discrimination). And ultimately, constitutional values dictate that both must be taken into account. Thus, as Chandrachud J. observed in paragraph 126:

Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

On these bases – and on the basis of the Report’s finding that there had been no adverse impact even on instrumental efficiency as the data showed, this ground of challenge was rejected as well.

Creamy Layer

A final point: it was argued that the law was unconstitutional because – after Jarnail Singh – it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court correctly observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out once more, however, that Jarnail Singh’s finding on this respect is somewhat suspect: the reason why the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity. The concept of the creamy layer makes sense if we assume that it is possible to escape one’s group identity (through prosperity or other ways of social advancement, for example). However, when oppression is defined by characteristics such as social stigma (as was well-recognised by Ambedkar and other framers of the Constitution), then the very concept of a “creamy layer” within that group does not make sense. This aspect of Jarnail Singh, it is to be hoped, will be reconsidered at some point.

Conclusion

Today’s judgment is a fascinating read, particularly because of the manner in which it moves between different levels of reasoning – from concrete issues of service jurisprudence to the abstract principles of substantive equality and the idea of merit – and how it weaves them together in one coherent vision of transformative constitutionalism. The Court’s finding on the substantive question – the constitutionality of the seniority law – is informed by its reasoning about the abstract principles that underly the Constitution’s equality code; in other words, the Court believes that the Constitution ideals make a difference, and it explains precisely how it does so. And moreover, it joins an important tradition of judicial reasoning on affirmative action that does not take concepts of “merit” and “efficiency” as self-evident, but subjects them to critical evaluation, from the perspective of the original constitutional vision, noting how they are embedded within our social realities (and inequalities). This tradition of reasoning has, so far, been underdeveloped in our constitutional history – and today’s judgment marks an important milestone in its evolution.

Guest Post: The Case against the 103rd Amendment

(This is a guest post by Malavika Prasad. A prior version appeared here.)


The 103rd Constitutional Amendment permits the State to:

  1. make special provisions (Article 15(6)),
  2. make special provisions, including reservations in admissions to educational institutions, in addition to the existing reservations to the extent of 10%, and
  3. make provision for reservations in appointments or posts, in addition to the existing reservations to the extent of 10% for the advancement of “any economically weaker sections of citizens other than the classes mentioned” in Articles 15(4) and (5) and Article 16(4).

In this piece, I respond to Gautam Bhatia and Anup Surendranath, and make the basic structure argument against the 10% reservation for this class of beneficiaries. I do not present any analysis on the constitutionality of other “special provisions” such as scholarships, fee waivers, etc.

basicstructure

Reservations are meant to ensure that the ideal of “equal opportunity” is not a mirage for persons subordinated by social structures such as caste, gender, race, etc. This is why Article 16(4) is considered to be an emphatic restatement of Article 16(1)’s principle of equality of opportunity (see NM Thomas, Indira Sawhney and this paper examining the relationship between the two articles). Prior to the 103rd Amendment, in an ideal India in which quality education is available in public schools, a beneficiary of reservation under Articles 15(4) and (5) and Article 16(4) (let’s call them “protected groups”), from the parent’s generation ought to attain upward mobility of the degree and kind that enables their children or grandchildren to compete for the unreserved, open seats. So long as there is a steady stream of first generation learners from protected groups attending school each year with the benefit of reservation, the numbers of second and later generation learners from protected groups in the total pool of students (comprising reserved and unreserved seats) ought to grow. Growing numbers of later generation learners from these protected groups, in even unreserved seats, would be testimony to the success of a reservation program: the parental generation, being beneficiaries of reservation, gained a boost that enabled the later generations compete without the need for a similar boost. In other words, the benefit of reservation to earlier generation learners enables later generations of learners to work their way up, in educational institutions and the workforce, and out of the conditions of backwardness.

This logic is, of course, an oversimplification resorted to here only for the purpose of the argument. In reality, the conditions of backwardness that characterize OBCs are qualitatively different than those for SCs/STs. The key difference between the two is of social stigma: persons from SC communities, for instance, regardless of their attainments in education and employment, continue to face the stigma of untouchability by other members of society, a reality steadfastly recognised by the Supreme Court in 1992 Indira Sawhney, albeit with a recent and problematic departure in Jarnail Singh. A study of the castes and tribal groups classified as SC/ST, and the determinants for doing so is available in Chapter 5 of Marc Galanter’s Competing Inequalities.

The Rights of Later-Generation SC/ST/OBC Learners

After Articles 15(6) and 16(6), the number of second and later generation learners from protected groups who take up unreserved seats might diminish, notwithstanding the growing numbers of them who are capable of competing in the open channel. This would not have happened but for the Amendment, because the new set of beneficiaries under Articles 15(6) and 16(6) are to be “other” than those from the protected groups contemplated in Article 15(4) and (5) and 16(4). In other words, the new class of beneficiaries is defined in opposition to the old classes of beneficiaries. So when the State sets about following the Amendment’s instructions to name the new class of beneficiaries, it must first analyse what counts as “economic disadvantage” and then produce “indicators”. Then, it must test which persons qualify against these indicators of economic disadvantage. In doing so, the State must consider only persons who are not from the protected groups of SCs/STs or OBCs. Thus, to the extent of 10%, educationally well-to-do persons can be beneficiaries of reservations in educational institutions under Article 15(6). Likewise, classes of citizens who are adequately represented in the State services can be beneficiaries of reservations in the State services under Article 16(6). The Amendment thus cements the claim of persons from upper castes who are possibly educationally well-to-do and adequately represented in State services, on 10% of seats or posts.  

Furthermore, the new class of beneficiaries is left to the State to notify from time to time, “on the basis of family income and other indicators of economic disadvantage.” What might count as “indicators of economic disadvantage” is unclear. Since “indicators of economic disadvantage” are to be understood in conjunction with “family income”, presumably, the indicators of disadvantage will consider disadvantage that afflicts families, and thus members of families i.e. individuals. Thus, the Amendment will cement the claim of persons from educationally well-to-do and otherwise well-represented upper-castes, based solely on characteristics that are individual to them.

This damages the basic structure of the Constitution of India. To be clear, the argument is not that the Amendment excludes second and later generation learners of SC/ST/OBCs capable of accessing unreserved seats, from accessing 10% unreserved seats. This by itself is not a problem for the basic structure; it is thus no response to argue that the SC/ST/OBCs already have 50% reserved seats and thus cannot remedy the loss of potential access to unreserved seats. The argument is that the exclusion of these later generation learners, due to an a priori reservation of 10% seats for persons from the upper-castes, is a violation of the basic structure doctrine.

The Logic of Group Representation

This argument hinges on the premise that reservations, as a special provision are meant to achieve representation of communities so far either unrepresented or inadequately represented in the State. That reservations are meant to guarantee opportunity for representation was the premise of even the debates in the Constituent Assembly on Article 16 (Draft Article 10) for instance here, here, here, here and here.

If we can agree that reservations are meant to remedy inadequate representation, then I make two claims:

First: reservations in particular, unlike other special provisions, are only a fruitful remedy to persons subordinated by a structural barrier such as caste, race and gender. This follows from the purpose of reservations being to enhance the representation of those groups that are inadequately represented. Inadequate representation of certain groups is a consequence of members from those groups being held back, throughout their lives, from accessing opportunities on par with the rest of society, by other members of society. For instance, gatekeepers to social spaces such as schools, workplaces, shops etc. continue to practice untouchability, or create other onerous entry barriers for persons from SC/STs. Such continual treatment as “lesser” than others could also psychological harms and intergenerational trauma in persons from SC/STs. One’s birth into castes that are SC/ST then becomes the cause for further and cumulative disadvantage that is not only social and educational but also economic. Contrast this with persons from upper-castes who are setback by “economic disadvantage”. Such disadvantage is not caused by being systematically treated discriminatorily by other members of society. Even the framers of the 1st Constitutional Amendment which introduced Article 15(4) were conscious of the nature of economic disadvantage, as Galanter notes:

In spite of [Prime Minister Nehru’s] reluctance to talk about caste, it is clear that what was intended were not measures to erase all inequalities, but specifically those which were associated with traditional social structure. “[W]e want to put an end to . . . all those infinite divisions that have grown up in our social life . . . we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. . . . But in the structure that has grown up . . . with its vast number of fissures or divisions.”

Galanter also notes that Nehru was unwilling to accept any of KT Shah’s amendments that sought to remedy only “economic backwardness” of individuals, as opposed to social and educational backwardness of “classes”:

He then observed: “But if I added ‘economically’ I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. ‘Socially’ is a much wider word including many things and certainly including economically” (id., 9830).

Since “economic disadvantage” as contemplated in the 103rd Amendment is unlike the structural disadvantage of caste, in that it varies from individual to individual and does not result from membership in a subordinated group, there is nothing to be gained from granting reservations to persons suffering economic disadvantage. This is because the barriers facing upper-caste persons with economic disadvantage are not barriers of representation. One might respond that reservations nonetheless are sought by groups that do not seek to be better represented, because they are an immediate and tangible benefit unlike other special provisions. While that may be true of the demand for reservation by upper-castes, it is not constitutional to accede to such a demand – which is the substance of my next claim.

Equality and the Basic Structure

bsproper

Second, if reservations are to remedy the effects of caste-subordination by providing representation, then enhancing and cementing the representation of upper-castes damages democracy, which is a part of the basic structure of the Constitution of India.  This aphorism is oft-invoked in cases concerned with questions of what comprises a representative democracy (“free and fair elections”, “judicial review of governor’s powers”) and how a representative democracy can be realized (mechanisms like “one-person-one-vote”, or “secret ballot”). For instance, Justices Khanna and Mathew held, in Indira Gandhi v. Raj Narain, that the constitutional amendment immunizing the election of the Prime Minister and Speaker from judicial challenge damages the principle of “free and fair elections”, a central principle of democracy. RC Poudyal v. Union held that a marginal distortion of the “one-person-one-vote” principle does not damage representative democracy. Kuldip Nayyar held that doing away with the requirement of domicile in the State of candidacy and secret ballot in Rajya Sabha elections would not damage representative democracy. It is the what – the concept in Bhatia’s and originally Dworkin’s words – and not the how – the “conception” – that courts recognise as part of the basic structure. In all these cases, Courts appear to repeatedly uphold elements of the structure and form of democratic government as part of the basic structure.

The form and structure of democratic government cannot be an end in itself, unless all citizens are a priori free and equal to each other. Indian society however possesses deep-seated inequality perpetuated by structures such as caste, and is thus fundamentally undemocratic. Democratic government was chosen as the means to achieve substantive democracy. Dr. Ambedkar reckoned with this reality as he defended the choice to place the working of the administrative services in the Constitution:

While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

 

If elements of the structure of democratic government (such as “free and fair elections”) are part of the basic structure of the Constitution, then the ends sought to be realized through the means of democratic government must also be part of the basic structure. In other words, the why of democracy must be equally central to the basic structure of the Indian Constitution as the how and the what of democracy.

The why of our democracy, as Ambedkar stated, is to realize equality of all persons, despite our deep social stratifications. For substantive democracy, remedying subordination by virtue of caste-membership is indispensable. The 10% reservation for upper-castes undoes this remedy, by cementing the representation of upper-caste persons based on individual criteria such as economic disadvantage. In other words, the 103rd Amendment cements the power of already well-represented groups to the detriment of protected groups. This is a fundamentally undemocratic outcome, taking us back to the status quo in 1950 which we sought to consciously progress from in promulgating the Constitution of India. Thus, the 10% reservation consciously damages substantive democracy which is a core aspect and basic feature of the Constitution of India.

Conclusion

In lieu of a conclusion, it bears mentioning that for my argument, it is irrelevant whether the 10% quota is provided over and above the 50% reservation, or within the 50% reservation such that SC/ST/OBCs are entitled only to 40%. Likewise, nothing turns on breaching the 50% rule either – which can easily be breached by a constitutional amendment so long as special provisions are seen as an emphatic restatement of the principle of equal opportunity. Instead, my argument is merely that cementing the representation of persons from upper-castes damages substantive democracy – upper castes being adequately represented in all social spaces, educational institutions, and in the services of the State. The remedy for upper-caste individuals set back by economic disadvantage lies elsewhere, but not in reservations.

Is the 103rd Amendment Unconstitutional?

Yesterday, the President assented to the Constitution (One Hundred and Third Amendment) Act, which introduces reservations based on economic criteria, into the Constitution. The swift passage of this amendment through both houses of Parliament (from start to finish, it took 48 hours) has raised serious questions about democratic accountability. The Amendment itself has been castigated (repeatedly) as an election gimmick, and contrary to the very purpose of providing reservations. However, this is now history: the Amendment is here, awaiting only to be notified by the Government. And so, to the only relevant legal question that remains: is the 103rd Amendment unconstitutional?

The Basic Structure

 

bs

It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges are always threatening to drop upon the neck of democracy, the Supreme Court has almost never used basic structure to invalidate constitutional amendments. The high-profile striking down of the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has been used on an average of once in a decade. And in the seventy-four constitutional amendments after Kesavananda, only five have been struck down on substantive basic structure grounds (a strike rate of around 7%).

It’s also interesting to note (by way of example) what the Supreme Court has allowed to stand in the teeth of a basic structure challenge: in Nagaraj, a whole-scale restructuring of Article 16 that would effectively breach the 50% Rule (more on that in a moment), and in Poudyal, a departure from the principle of one-person-one-vote (more on that shortly, as well). Even when the Court has invoked basic structure, it has elected to use the scalpel rather than the bludgeon: in Raj Narain and in Minerva Mills – two of the starkest cases of constitutional abuse in our history, both by Indira Gandhi – the Court only snipped away a clause (granting immunity to Indira Gandhi from electoral malpractice) and a phrase (effectively getting rid of the fundamental rights chapter altogether) respectively, while upholding the rest of the (abusive) Amendments under challenge.

This is the case because the Court – conscious of the legitimacy issues with striking down a constitutional amendment – has been very careful about the language that it uses. Kesavananda Bharati didn’t say “modify”, “tinker”, or “change” – it said that a constitutional amendment cannot “damage or destroy” the basic structure. Nagaraj refined this by introducing the “width and identity” tests, making it clear that a basic structure challenge would have to demonstrate that the constitutional amendment makes the Constitution virtually unrecognisable.

The Amendment 

batman-robin

Within this context, let us briefly examine the 103rd Amendment. The Amendment introduces Articles 15(6) and 16(6) into the Constitution. 15(6) allows for reservations for “economically weaker sections of citizens” other than the classes mentioned in Articles 15(4) and 15(5) (i.e. effectively, other than the SCs/STs/OBCs). Article 16(6) does the same for public employment. The quantum of reservation is fixed at 10% over and above the existing reservation for SCs/STs/OBCs. An Explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

I want to focus on three features that (in my view) can form the basis for a potentially credible basic structure challenge. The first is the “50% question.” The second is (what seems to be) the use of family income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

The Challenge 

A. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The roots of this stipulation lie in M.R. Balaji v State of Mysore, where the Supreme Court held that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of opportunity), anything more than 50% would imply that the exception was swallowing up the rule. In Indra Sawhney v Union of India, this judicial rule was affirmed once again, and a governmental notification providing for 10% reservations on the basis of economic disadvantage was struck down. However, neither Balaji nor Sawhney were concerned with the basic structure: they were considering a law and subordinate legislation, respectively.

So, is the 50% rule a part of the basic structure? In Nagaraj, the Court suggested that it is, when it noted that:

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

But is there any support for this observation? The only indication that the 50% limit is so crucial that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948. Ambedkar observed that the purpose of Article 16 was to balance two competing principles – (formal) equality of opportunity, and compensation for inadequate representation in public employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and 16(4)), and one example that Ambedkar specifically took to indicate what might upset this balance was a potential situation in which the quantum of reservation reached 70%.

There is, therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as its drafters intended (and as the Supreme Court later affirmed). However, it does not follow from that that an amendment to Article 16 that changes this scheme would be a basic structure violation. This is for two reasons. The first is that the basic structure is not reducible to a particular, concrete articulation of values, internal to a specific constitutional provision. It is open to Parliament – acting in its constituent capacity – to depart from the constitutional settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the only reasonable interpretation available. In N.M. Thomas, for example, a majority of four judges out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words, 16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as that was predicated on 16(4) being an exception to 16(1).

I have defended this interpretation elsewhere, but here, I am not concerned with whether it is right or wrong. The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-judge bench of the Court, and which has never – technically – been overruled. Consequently, it is certainly open to Parliament to take that view, and amend Article 16 to reflect that.

Lastly – and keeping everything else aside – I am not even sure that on its terms, the 103rd Amendment commits Parliament to increasing the quantum of reservation above 50%. The Amendment only provides reservation to the extent of 10%; however, existing Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at 50% – that has been achieved through legislation. Consequently, how can a basic structure challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised at all – must come in when Parliament enacts a law to give effect to the Amendment.

B. Individuals and Groups

There is, I think, a more persuasive basic structure argument against the Amendment. There is one feature that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the “family income” as the primary determinant of economic disadvantage, the Amendment advances a philosophy of reservation that focuses on remedying individual disadvantage (by taking the family as the unit for determining who is disadvantaged). At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles 14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the historical fact that in India, group membership has been the primary basis of institutional and structural disadvantage. One’s access to opportunity and chances of social and economic mobility have been mediated by one’s group identity – and primary, that identity has been structured around caste. The logic of reservation in India – and this dates back to pre-Independence times – has, consequently, always been that while the right to equality is an individual right, the only method of achieving substantive equality at an individual level is to take into account the disadvantages and barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd Amendment must fail the basic structure test is because it essentially contains internally contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

While I agree that the 103rd Amendment makes a logical mess of the scheme of Equality Code, when it comes to a basic structure challenge, however, I find myself running up against the same difficulty that was faced in assessing the 50% challenge. And that is that the argument accords to the basic structure a level of specificity that it does not have, and one that the Court has consistently refused to give it. It is true that economic reservation goes against the grain of how social justice and equality have always been conceptualised in India, at least in constitutional terms. It is true that it sets up a contradiction (in terms of legal logic) between the SC/ST/OBC reservation provisions, and economic reservation. However, once again – the basic structure does not bind Parliament to any particular conception of equality and social justice. The basic structure does not require that Parliament follow the same logic, even within the same constitutional provision. The basic structure does not mandate clean, coherent, and logical drafting. All it requires is that a basic feature – in this case, “equality” – not be “damaged or destroyed.” And for me, it is difficult to see how economic reservation “damages or destroys” the concept of equality, because as long as there exists a reasonable understanding of equality that can accommodate economic reservation – and surely there does – it will be immune from a basic structure challenge.

The distinction between the level of the “concept” (which is the level at which the basic structure operates) and the level of the “conception” (which is the level at which the Amendment operates) is made clear if we consider the case of R.C. Poudyal: in R.C. Poudyal, which dealt with the accession of Sikkim to the Indian Union, one of the challenges involved a departure from the one-person-one-vote principle when it came to elections within Sikkim. It was argued that this violated the basic structure, because it went against democracy. The Court upheld it, however, noting that there were many different forms of democracy that were consistent with the concept of democracy. Similarly, there are many visions of equality – many concrete manifestations – that remain consistent with the concept of equality. A basic structure challenge can succeed only if equality itself is abrogated – for example, if Article 14 is repealed altogether, or if a Bill of Attainder is passed (which was the issue in Raj Narain).

Arbitrariness 

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has no relation with the goal of reservation. In other words – as many people have pointed out – reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.

This raises a fascinating constitutional question, which is yet to be resolved: are there specific articles that are so important and crucial, that they themselves constitute basic features? In particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a constitutional amendment can be challenged, like an ordinary law, on the basis that it violates one of these articles?

The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality, freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional amendment.

Conclusion

There are powerful legal and constitutional arguments against economic reservation. However, what the above discussion has shown is that they operate at the level of the law: they would succeed were it the case that legislation was being tested against the basic structure.  However, it is far more difficult in the case of a constitutional amendment. Ironically, this is because of the precise reason that has given so much fodder to basic structure critics – the Court’s refusal to define it in concrete and specific terms. As long as economic reservation is defensible on a ground that is recognisable in terms of equality, the fact that it departs from how equality and social justice is presently understood in the Constitution, is no ground for striking it down. And that minimal threshold, in my view, is met by the 103rd Amendment. It is likely to survive a basic structure challenge.

 

The Nagaraj/Creamy Layer Judgment and its Discontents

On September 26th, a Constitution Bench of the Supreme Court delivered judgment in Jarnail Singh v Lacchmi Narain GuptaThe Court was essentially called upon to decide whether the correctness of the previous five-judge bench judgment in M. Nagaraj v Union of India ought to be referred to a seven-judge bench for reconsideration.

Nagaraj was a reservations case (examining a challenge to Articles 16(4A) and (4B) of the Constitution. In particular, two of its findings were under challenge: firstNagaraj had held that as a precursor to granting reservations (including to Scheduled Castes and Scheduled Tribes), the State would have to collect “quantifiable data” demonstrating their backwardness. And secondlyNagaraj had held that the “creamy layer” concept – where certain members of a group were deemed to belong to the “creamy layer” and therefore not entitled to reservations – was also applicable to Scheduled Castes and Scheduled Tribes. The Attorney-General for India argued that both these findings were incorrect, as they were contrary to the holding of the nine-judge bench in Indira Sawhney v Union of India.

Quantifiable Data 

On the first issue, the Constitution Bench – in a unanimous judgment authored by Nariman – held that Nagaraj stood directly contrary to Indra Sawhney, and was therefore incorrect:

Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, we are afraid that we must reject Shri Shanti Bhushan’s argument. The reference to ―class‖ is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj (supra) has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. We are afraid that this portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney (1) (supra). (paragraph 14)

While this is no doubt correct on law (and indeed, on logic – the Presidential list under Articles 341 and 342 containing the list of Scheduled Castes and Scheduled Tribes is already based on an assessment of marginalisation and vulnerability), it does raise a question of judicial propriety. Can a five-judge bench hold that a coordinate bench wrongly interpreted the law, and is therefore incorrect? Does not propriety require that the subsequent bench refer the case to a seven-judge bench, which can then overrule the (allegedly) incorrect judgment? Not that this is not even a case where it was argued that Nagaraj was per incuriam: rather, what was advanced was the far more modest claim that Nagaraj got Indira Sawhney wrong. But even if Nagaraj got Indira Sawhney hopelessly, irredeemably wrong, that was not for the Constitution Bench in Jarnail Singh to decide.

Creamy Layer

Nariman J. then went on to hold that even though Indira Sawhney had not expressly chosen to apply the creamy layer principle to Scheduled Castes and Scheduled Tribes, it had always been clear that the principle was a facet of constitutional equality. Nariman J. relied upon N.M. Thomas for this principle, relying upon some observations in Krishna Iyer J.’s concurring opinion, to note that:

The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. (paragaraph 15)

Importantly, Nariman J then went on to hold that courts could themselves “exclude” the creamy layer from reservations (paragraph 16).

But for a conclusion of this magnitude, Nariman J.’s reasoning is disappointingly sketchy. There are at least two good reasons why the creamy layer doctrine should not be applied to Scheduled Castes and Scheduled Tribes, neither of which are addressed or acknowledged by the judgment. First, the very concept of a “creamy layer” presupposes that some members of a subordinated group have attained a level of privilege, that they no longer share the characteristics of subordination, and therefore, are no longer a part of the “group” in that limited sense. Now, when the subordination is economic or political, it makes sense to assume that it is at least possible for some people, or groups of people, to “escape” that subordination, so to say. However, that is a far more dubious claim when the subordination is social in character, and is founded on discrimination of a certain kind, where group identity itself is the locus of disadvantage. We don’t have to go too far afield to understand this – there are more than enough examples of Dalits who have broken free of economic marginalisation or penury, but continue to be subjected to the most shocking forms of social discrimination. And indeed, this has historically borne out: right from the early-20th century, the first lists of “Depressed Classes”, drawn up by British commissions, focused on social stigma as the basis of classification (for a detailed discussion, see Marc Galanter’s Competing Inequalities). Recall Ambedkar’s own words about how caste society was based on an “ascending scale of hatred and a downward scale of contempt.” Does the concept of a “creamy layer” make any sense here? Well, if it does, than it requires substantially more detailed justification than the Court provides.

And secondly, even if we are to accept that “creamy layer” makes conceptual sense in the case of SCs and STs, there nonetheless remain justifications for the existing reservation model that the Court does not touch upon. It is argued, for example, that even if the benefits of reservation are “captured” by the elite within a group, even that constitutes positively towards greater social mobility (of the group) in the long term apart from ancillary benefits of greater political salience. I am not saying that these arguments are correct, or persuasive; however, it does behoove the Court to address them if it is going to introduce the creamy layer concept into these two categories.

Conclusion

Jarnail Singh suffers from two problems. On one point, it overrules a coordinate bench without even a finding of per incuriam. And on the second point, it puts its seal on a significant doctrinal shift in reservations jurisprudence, but does not back it up with the depth of analysis that it demands. I suspect, however, that this is not the last that we have heard on the issue – especially from the government’s side!