Supreme Court judgment on EWS defeated constitutional objectives of creation of an egalitarian social order – III

The Economically Weaker Sections reservation-affirming judgment of the Supreme Court results in the denial of constitutional rights to a large section of the population, which ought to be protected under the scheme of the Constitution.

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(This is the third and concluding part. Click here to read Part I, and here to read Part II, of this piece.)

Extraordinary situations: far-flung and remote areas

RESERVATION in India is actually to ensure adequate representation to the unrepresented classes of people, namely the Scheduled Castes (SCs), the Scheduled Tribes (STs) and the Other Backward Classes (OBCs). To classify it as affirmative action is contrary to the constitutional scheme and the majority judgment of the Supreme Court in Indira Sawhney versus Union of India (1992), which has recognised it as a classification.

As explained earlier, discrimination in society is based upon the social origin of a person; therefore, a remedy based on the economic standing of a person would be fatal to the equality, and would perpetuate discrimination and frustrate constitutional goals. The 50 per cent ceiling decided by the Supreme Court in M.R. Balaji versus State of Mysore (1962) was approved in Indira Sawhney, and it was further held that the ceiling should be applied every year, disapproving the Supreme Court's judgment in State of Kerala versus N.M. Thomas (1975).

Also read: Rethinking the Debate on Reservations

Though the Parliament has not approved it on this account, and has amended the Constitution by inserting clause (4-B) into Article 16 of the Constitution, the extraordinary situations indicated in paragraph 810 of Indra Sawhney were only illustrative and cannot be said to be exhaustive. The relevant observations read as under:

"809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50 percent.

810. While 50 percent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."

But it is not merely a geographical test. The use of the expression "on being out of the mainstream of national life" is a social test, which also needs to be fulfilled for a case to be covered by the exception. In Indra Sawhney, the expression used was "far-flung and remote areas", but the social test which was a part of the same sentence stated "the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristic to them".

Thus, one of the social conditions in para 810 is that being within the mainstream of national life, the case of Marathas does not satisfy the extraordinary situations as indicated in para 810. The Marathas are in the mainstream of national life. It is not even disputed that Marathas are a politically dominant caste.

Critically examining the reasoning of the judges

Analysing the 50 per cent rule in Janhit Abhiyan versus Union of India (2022), Justice Dinesh Maheshwari cited Justice Ravindra S. Bhat's opinion in Jaishri Patil versus Chief Minister, Maharashtra (2021), stating as follows:

"10. A careful reading of the judgments in Indra Sawhney v. Union of India clarifies that seven out of the nine judges concurred that there exists a quantitative limit on reservation-spelt out at 50 percent. In the opinion of four judges, therefore, per the judgment of B.P. Jeevan Reddy, J., this limit could be exceeded under extraordinary circumstances and in conditions for which separate justification has to be forthcoming by the State or the agency concerned. However, there is unanimity in the conclusion by all seven Judges that an outer limit for reservation should be 50 percent. Undoubtedly, the other two judges, Ratnavel Pandian and P.B. Sawant, JJ. indicated that there is no general rule of 50 percent limit on reservation. In these circumstances, given the general common agreement about the existence of an outer limit i.e., 50 percent, the petitioner's argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subba Rao, in T. Devadasan v. Union of India, the judgments of S.M. Fazal Ali and Krishna lyer, JJ. in State of Kerala v. N.M. Thomas and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka) is not an argument compelling a review or reconsideration of Indra Sawhney rule."

Justice Maheshwari has further cited Justice Ashok Bhushan's opinion in Jaishri Patil, and has also restated the principle and has observed as under:

"442. The above constitutional amendment makes it very clear that the ceiling of 50 percent 'has now received constitutional recognition'. The ceiling of 50 percent is the ceiling which was approved by this Court in Indra Sawhney case, thus, the constitutional amendment in fact recognises the 50 percent ceiling which was approved in Indra Sawhney case and on the basis of the above constitutional amendment, no case has been made out to revisit Indra Sawhney."

In Sweatt versus Painter (1950), the United States (US) Supreme Court ruled that the segregated facilities offered to the black and white law students in Texas were not substantially equal. The faculty, library and courses offered at the African American Law Schools were patently inferior and denied the black students equal protection of the laws. Black law students at the University of Oklahoma were required to attend class in an anteroom designated 'coloreds only', study on the mezzanine of the library, and eat in the cafeteria at a different time than white students.

The US Supreme Court struck down these arrangements as the Fourteenth Amendment to the US Constitution required the integration of black and white graduate students, determining that segregation impaired the students' "ability to study, engage in discussions, exchange views and in general, learn [the] profession". Thus, the principle advocated is in a way a reiteration of the American segregation system. As such, it is ultimately likely to degenerate the society and would lead to a discriminatory system of exclusion.

Let us analyse the majority judgment by Justice Maheshwari in Janhit Abhiyan, who has justified the economic criteria for reservation and has taken a view that "exclusion of classes covered by Articles 15(4) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirement of non-discrimination and compensatory discrimination does not violate the equality code and does not in any manner cause damage to the basic structure of the Constitution of India." This is contrary to the scheme of the Constitution, as such exclusion would perpetuate injustice, and may lead to untouchability, which has been abolished by Article 17 of the Constitution.

The Constitution has evolved classes for protection, and the above rationale would create a caste-based bias against such constitutionally protected classes, as explained by Justice Bhat with then Chief Justice U.U. Lalit, in their dissenting opinion. This was also held as a settled principle by the larger bench of the court in Indra Sawhney. Such an exclusionary clause works to the disadvantage of persons who are not only falling in the same position, but also facing social discrimination, deprivation and untouchability and the members of such a class are in many cases treated worse than animals.

Also read: Significance of dissent in Supreme Court's judgment in the EWS case

Babasaheb Dr. B.R. Ambedkar had led a protest on March 20, 1927, for access of water and water rights of untouchables — the Mahad Talab Andolan — to demonstrate that the depressed classes are not Hindus, and that Hindus discriminate against them in every walk of life, even as the depressed classes are not permitted to take or drink water from a village pond, which was used for providing water to animals.

The members of depressed classes wanted to perform pooja at the Kala Ram Mandir, Nashik under the leadership of Dr. Ambedkar on March 2, 1930, but the management of the temple did not allow the untouchables' entry into the temple and they were mercilessly beaten for their attempt to enter it.

Highlighting the reason for the movement, Dr. Ambedkar had written:

"I started temple entry Satyagraha only because I felt that was the best way of energising the depressed classes and making them conscious of their position. As I believe, I have achieved that purpose. I have no more use for temple entry. I want the depressed classes to concentrate their energy and resources on politics and education, and I hope that they will realise the importance of both."

This was organised as a great protest for temple entry to demonstrate the denial of basic human rights to the depressed classes. These protests were not to worship any God; it was against discrimination, deprivation of basic rights and untouchability, including access to water, and to underscore that the untouchables are not treated with dignity and are excluded from the mainstream. It also underlined that in the varna system, the position of shudras and their human existence is worse than an animal.

Also read: On the Trajectory Shown by Ambedkar

Justice Bela M. Trivedi held in Janhit Abhiyan that "we need to revisit the system of reservation in the larger interest of reservation of the society as a whole, as a step forward towards transformative constitutionalism."

Justice J.B. Pardiwala held in the same judgment that "reservation should not be allowed to become a vested interest … as larger percentages of backward class members attain acceptable standards of education and employment, they should be removed from the backward categories." It is surprising that he connected Articles 15(4), 16(4), 16(4A) and 16(4B) of the Constitution, to the political reservation in Articles 330 and 332 of the Constitution. In a case where the Supreme Court has upheld the reservation for a class, which does not deserve such protective right and has given sermon on reservation for a class which is historically deprived and is facing social exclusion and untouchability, any suggestion to restrict or limit their rights is against the spirit of the Constitution and it is constitutionally impermissible for the court.

The judges do not seem to understand the social conditions of the society where a Chief Minister and other highly placed constitutional authorities are facing discrimination and untouchability, what to say of the plight of the common men. As such, how could the basis of constitutional classification be legally or constitutionally altered in such social conditions? In my considered opinion, to deny recognition to or ignore such discrimination and untouchability — as such the social factors, and to recognise economic factors alone, is constitutionally perverse and perpetuates discrimination, deprivation and untouchability in the society, which has been constitutionally abolished.

Also read: Why we must annihilate caste to save Indian democracy

But the Union government enacted a provision solely based on economic criteria for reservation in services and education.

The rights are determined on constitutional values, and were adopted by the Constituent Assembly of India after a marathon process. The Supreme Court, in its landmark judgment in Kesavananda Bharati v. State of Kerala (1973), laid down that the basic features of the Constitution are not alterable.

Human dignity, UN Human Rights Council and equality

Furthermore, India is and has been a participant in various international conventions having a correlation with questions pertaining to economic disabilities. Kesavananda Bharati referred to a decision rendered by English barrister and judge Lord A.T. Denning of the British Court of Appeal in Corocraft versus Pan American Airways (1968) that considered the Warsaw Convention. It was said that the Warsaw Convention is an international convention, which is binding on all countries which have ratified it, and "it is the duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it". There is no question of conflict as the members of the socially and educationally backward classes including the SCs and the STs are facing social exclusion and are not getting the protection of the express provisions of the Constitution.

In R. D. Upadhyay versus State of Andhra Pradesh (2006), a three-judge bench of the Supreme Court affirmed the earlier decisions, upholding the enforceability of international conventions when they elucidate and effectuate fundamental rights, and held that such conventions may also be read as part of domestic law as long as there is no inconsistency between them. Thus understood, it hardly needs elaboration that the laws (including constitutional amendments) enacted, inter alia, for giving effect to international conventions, have to be broadly construed and cannot be struck down for askance. The social condition in India must be considered by the court.

The Report of the Special Rapporteur on minority issues, dated January 28, 2016, on the agenda item 'Promotion and protection of all human rights, civil, political, economic, social, and cultural rights including the right to development' at the 31st Session of the Human Rights Council of the United Nations, concluded as under:

"VII. Conclusions and recommendations …

124. Discrimination based on caste and analogous systems is deeply embedded in interpersonal and communal relationships in caste-affected countries. Therefore, overcoming it will require not only legal and political responses, but also community-based approaches aimed at changing the mindsets of individuals and the collective conscience of local communities. In this regard, formal and informal community education and open dialogue from an early age are essential elements to ensure that the principles of human dignity and equality generally are accepted and respected.

126. Discrimination on the basis of caste and analogous systems is a major cause of poverty, inequality and social exclusion of affected communities. In the implementation of the 2030 Agenda for Sustainable Development, States should consider including caste-specific indicators to ensure that the Sustainable Development Goals and their targets address the situation of affected groups.

128. The Special Rapporteur believes that relevant elements and standards emanating from the minority rights framework, including equality, non-discrimination, consultation, participation, and special measures, can contribute to the protection of the rights of caste-affected communities and should be applied to combat discrimination based on caste and analogous systems.
129. States should adopt specific legislation prohibiting discrimination on the grounds of caste and/or analogous systems. Existing legal frameworks to combat caste discrimination must be adequately and fully implemented and include appropriate penalties for acts of caste-based discrimination."

Thus, the court has to consider and accept a view which is in conformity with the recommendations of the human right committee of the United Nations. The right to development is also reflective of the concern on the discrimination in the case of the socially neglected sections of the society.

Violation of democratic and constitutional values

Democracy is one of the basic features of our Constitution. Social democracy is a facet of democracy. Representation of different sections of the society is the essence of democracy. By providing for economic reservation on the basis of economic standing of a person, as such, the Parliament has tried to deprive social democracy and democratic rights to all sections of the society. The upper castes, which constitutes 10 to 15 per cent of the total population, are already represented in at least 45 to 50 per cent of the total services, as the SCs, STs and OBCs are only provided 49.5 per cent reservation, which is yet to reach to that level in services, and in educational institutions. So, they are already overrepresented in the services and in education.

Reservation in promotion for the SCs and STs is yet to be implemented even after 27 years of enactment of the Constitution (77^th Amendment) Act, 1995. However, in Janhit Abhiyan, the judges referred to it as if it is continuing for the last 75 years. Though the provisions of the Constitution (77th Amendment) Act have been enacted, most states do not provide this reservation, as the court has erred by enforcing the dissent by Justice T.K. Thommen in Indira Sawhney without following the principle as laid down under Article 141 of the Constitution.

The reversions of promotions of lakhs of reserved employees in Uttar Pradesh and other states is also against the scheme of the Constitution. I feel that the denial of reservation in promotion to the OBCs is also unconstitutional and it is systematic deprivation for that class of persons. On that basis, even a high court direction was set aside by the Supreme Court in Mukesh Kumar versus State of Uttarakhand (2020). The Constitution Bench of the Supreme Court, in Jarnail Singh versus Lachhmi Narain Gupta (2018) decided that Indira Sawhney is binding on M. Nagaraj versus Union of India (2006). Jarnail Singh was further explained by a three-judge bench in January last year, but its effective implementation is yet to see the light of day.

For a change in a constitutional value, there should be some material to reflect that. Without changing the basis of the constitutional values, the social fabric would not assimilate to an egalitarian equality, or the principles of equality and equal values in society would be violated. The provision of economic reservation is to perpetuate inequality in the society.

Also read: Why EWS reservation defeats the purpose of reservation

Unfortunately, the Parliament has not discharged its function properly and as such a provision as the Constitution (103^rd Amendment) Act, 2019 has been enacted, which has altered the constitutional philosophy without deliberation, as neither a Parliamentary Committee has considered such a provision, nor the whole House Committee has effectively considered it, as provided under the scheme of the Constitution. The Supreme Court has also not considered constitutional questions by terming such questions as political, though it is the constitutional duty of the court to determine constitutional values vis-à-vis parliamentary duty.

The Constitution has cast duty upon the Constitutional courts to adjudicate and determine constitutional principles and constitutional values. Could a constitutional principle such as "social and educational backwardness" devolved by our forefathers be altered by "economic backwardness", or could the latter be additionally provided, without any scientific basis or any material to demonstrate change in the social conditions?

The Supreme Court has failed in its constitutional duty to consider the issues of non-adherence of constitutional principles by the Parliament. Constitutional courts are duty-bound to consider the constitutional concept of deliberative democracy, which is amenable to judicial review under the scheme of the constitutional adjudication by the constitutional court.

Janhit Abhiyan is a negation of constitutional principles, which have been recognised by the Constituent Assembly while drafting the visionary document that is the Constitution of India. Indian society has a deep-rooted caste system, which deprived the members of the backward classes (SCs/STs/OBCs) not only equal treatment in the society, but the caste system deprived human dignity to more than 85 percent of the population. Our society has been developed on the edifice of graded inequality and the vast majority of the population is suffering despite having express constitutional rights.

Also read: The Supreme Court's judgment in EWS case is contrary to constitutional morality

It is surprising that one deprived caste has a feeling that another caste is still more deprived or more deprived to such a caste. The Brahmanical social order sanctifies social discrimination, inequality and gradation as well as untouchability in the society. Dr. Ambedkar, who himself suffered indignity, constitutionally developed the principle of protecting human dignity by assuring equal protection to the members of the socially marginalised sections of the society.

The Brahmanical forces in society are firm believers in social inequality, and they work for the perpetuation of indignity, and social inequality in the society. The Constitution intends to establish an egalitarian social order, which has no discrimination of any kind. Dr. Ambedkar was successful with a lot of efforts to lay the foundation for an egalitarian society by eliminating the discriminatory factors of religion, race, caste, sex, descent, place of birth or residence, for equal treatment.

The society is so built-up brick by brick that every person is a frame-up in the caste system. Even persons who have converted to other religions from Hinduism do not leave their caste identities. The result of such a social system is that irrespective of religion, members of socially deprived sections or socially and educationally backward classes (SCs/STs/ OBCs) suffer despite their conversion to other religions.

Janhit Abhiyan, in a nutshell, is a denial of constitutional rights to a large section of the population, which ought to be protected under the scheme of the Constitution.