Wednesday, December 16, 2009

[ZESTCaste] Two student-authors explain in lucid terms how the Indian judiciary upheld reservation in order to defend substantive equality.


Logic of reservation


Two student-authors explain in lucid terms how the Indian judiciary
upheld reservation in order to defend substantive equality.

OBservers of Indian social reality are sometimes at a loss to
understand how the Indian Constitution emphasises equality and at the
same time provides for reservation in education and employment and in
representative bodies. This seeming dichotomy has often been resolved
by the judiciary – and when it failed to do so, by Parliament – in
favour of substantive equality as originally envisaged by the
Constitution-makers. Students of India's experiment in equality
jurisprudence have often found the absence of comprehensive and
up-to-date literature on the subject a major constraint in
understanding the rationale for continued reservation for the
Scheduled Castes, the Scheduled Tribes and the Backward Classes. The
need for a comprehensive book on how Parliament, State legislatures,
and the judiciary resolved every major challenge to substantive
equality was always felt.

Marc Galanter's Competing Equalities: Law and the Backward Classes in
India, no doubt, fills this void to some extent; but it was published
in 1984. Since then, jurisprudence on substantive equality has
expanded and there have been new controversies such as the one over
the implementation of the Mandal Commission report, the exclusion of
the creamy layer from among the beneficiaries of reservation, and the
introduction of reservation in admission to private educational
institutions. Sensing the void, the authors – undergraduate students
of NALSAR University of Law, Hyderabad – have put together this
remarkable book, keeping the requirements of both the lay person and
the student in mind.

At the outset, the authors try to grapple with the logic of
reservation, as originally understood by the Constitution-makers.
According to them, what originated as a system of division of labour
among Brahmins, or the priestly class; Kshatriyas, or the warriors;
Vaishyas, or the trading class; and Shudras, or those involved in
menial labour, developed over the ages into an evil that has plagued
Indian society like none other. One hopes that the authors do not
subscribe to the belief that such a division of labour was
intrinsically innocent. They rightly suggest that a key task that
awaited those who wrote the Constitution was the negation of the
divisive societal forces that had grown parasitically on the above

They add that mere negation may not have read as well with the other
provisions of the Constitution as those urging measures to
counterbalance them. Hence, the framers of the Constitution engaged in
efforts to eradicate the effects of past discrimination by providing
an effective equality and equalisation code, well supplemented by a
mandate for social justice that would ultimately result in a unified
society. Thus were born Articles 14 to 17 as part of the fundamental
rights. The efforts, as the authors rightly point out, have gained
tremendous momentum in their implementation.

But the story of this implementation will be incomplete without
discussing the nature of the resistance to it. Article 14 is the
general equality provision, interpreted to include the principle of
equal treatment of equals and unequal treatment of unequals. In
itself, Article 14 must be considered the source of legitimacy for
reservation for Dalits and the Backward Classes, who cannot otherwise
compete with the advantaged sections of society on equal terms because
of historical disabilities. This was the consideration of the
Constitution-makers, who did not see the need for Article 15(4) or
Article 15(5), which provide for reservation in educational
institutions. These clauses were inserted in 1951 and 2006,
respectively, through constitutional amendments.

As the authors recall, the Supreme Court, in the case of Champakam
Dorairajan, interpreted the absence of a provision such as Article
16(4) (reservation for Backward Classes in public services) in Article
15 (anti-discrimination provision) as placing hurdles in the way of
the state's attempt to provide for reservation in educational
institutions. Champakam Dorairajan had successfully challenged, in the
Madras High Court, the validity of the communal Government Order
issued by the then Madras State fixing a number of seats for
particular communities in the engineering and medical colleges of the
State. Thus, out of every 14 seats, six were to be allotted to
non-Brahmin Hindus, two to Backward Hindus, two to Brahmins, two to
"Harijans", one to an Anglo-Indian or an Indian Christian and one to a
Muslim. The petitioner did not actually apply for admission in the
medical college, but she stated that on inquiry she came to know that
she would not be admitted in the college because she was a Brahmin.
The State of Madras appealed against the High Court's order striking
down the G.O. in the Supreme Court. The Supreme Court's seven-judge
Bench upheld the High Court's order. This led to protests in the State
and to an amendment to the Constitution to ensure social justice.

The Interim Parliament thus came up with the First Constitutional
Amendment in 1951, introducing Article 15(4), helping to kick-start
endeavours at equalisation by the state. The insertion of Article
15(5), through the 93rd Constitutional Amendment in 2006, to make
clear provisions for reservation in admissions to private educational
institutions (barring minority institutions), was upheld by the
Supreme Court in the Ashoka Kumar Thakur case in 2008.

The core of various Supreme Court judgments on reservation is the
consistent ruling that caste alone cannot be the criterion for
identifying the beneficiaries as it would militate against the
principle of anti-discrimination embodied in Article 15(1). The
judiciary, therefore, had to invent the concept of the "creamy layer"
in order to bring in the economic criterion, along with caste, to
justify reservation. The creamy layer principle has been followed
since 1993 to exclude economically well-off persons from the ambit of
reservation in the public services, following the Supreme Court's
judgment in the Indra Sawhney case.

Another principle consistently followed by the Supreme Court, since
its decision in the M.R. Balaji case in 1961, is the maximum limit of
50 per cent for reservation in the public services and in educational
institutions. This is because the court believes that reservation
upwards of 50 per cent will militate against merit and efficiency,
which are equally important constitutional values, and will also
result in reverse discrimination with very few seats or vacancies
remaining for the non-backward classes. The pros and cons of both
these principles have been debated since then and the Supreme Court is
still to dispose of some serious challenges to them.

The book examines Articles 14 to 17 in terms of the drafting history,
interpretation of the key words in the texts of all their clauses, and
the meanings they acquired during their application and as decided by
the courts. Readers with a keen interest in understanding these
provisions will find the book very useful.


Its discussion of the term "discrimination" is more nuanced than what
one generally expects. Drawing from diverse case law, the book argues
that differential treatment of a class does not amount to
discrimination against that class unless there is prejudicial
treatment or deprivation of class rights. It is pointed out that
discrimination refers to unfavourable/prejudicial treatment of a class
of people (which may include a single individual as well) vis-a-vis
another class.

Whether there exists a right to reservation is another issue discussed
at length in this book. While conceding that Articles 15(4) and 16(4)
– enabling reservation for the Backward Classes in educational
institutions and in the public services, respectively – are enabling
provisions and do not guarantee a fundamental right to reservation,
the authors suggest that there exists a positive right to substantive
equality guaranteed by Article 14. Even though fundamental rights are
generally negative in nature, that is, they do not require any
positive actions from the state for their guarantee, there are certain
rights that would automatically stand violated by the state's
inaction, they say.

Article 14 postulates that unequals be treated unequally. The state's
inaction would amount to unequals being treated equally. Hence, the
authors are convinced that there is a positive obligation on the state
to treat the Backward Classes more favourably. The state has the
discretion to decide in what manner they should be treated more
favourably, and an action exercised in favour of this discretion
cannot be questioned on the grounds that it is insufficient. However,
failure to exercise this discretion would amount to violation of the
right to substantive equality, they suggest.

The book's discussion of Article 17 – prohibiting the practice of
untouchability – could have been more elaborate. The authors rightly
note that while the fundamental rights are not enforceable against
private individuals, Article 17 is an exception and it makes it
mandatory for the state to make sure that private individuals do not
practice untouchability. The Protection of Civil Rights Act, 1955, and
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, were both enacted to give effect to Article 17.

The Supreme Court quashed a challenge to the 1989 Act and upheld its
constitutional validity in State of Madhya Pradesh vs. Ram Krishna
Balothia in 1995 (3 SCC 221). Earlier, the Rajasthan High Court upheld
the Act in the case of Jai Singh vs. Union of India (AIR 1993 Raj
177). The book could have discussed the import of these judgments to
throw light on the gap between the objects of the Act and the social
reality. The continued practice of untouchability across the country
vindicates the need to continue reservation for the S.Cs and the S.Ts
beyond the constitutionally stipulated deadlines. The authors may well
discuss this aspect in the next edition of the book.

The book includes as annexures nine informative articles by law
students on different dimensions of reservation.


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