Unfolding the Enigma of Reservation

It cannot be denied that the constitution makers were aware of the challenges in bringing about true equality. The author, a Senior Advocate at the Supreme Court of India, discusses the importance of reservation policy to the realisation of the principle of substantive equality and social justice.

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IN January 2019, the 103^rd Constitutional Amendment Act garnered much furor on account of 10% of seats in educational institutions or posts in State services for economically weaker sections of the society. The States are entrusted with the task of naming the beneficiaries from among the upper-caste members on the basis of family income and other indicators of economic disadvantage. One of the issues highlighted was that "indicators of economic disadvantage" remained undefined and restricted to "family income". Thus, cementing the claims of individuals of educationally well placed and otherwise well-represented upper-castes.

The existing machinery of reservation in favor of Scheduled Castes, Scheduled Tribes and Other Backward Classes adds to a 49.5% at this point. With the introduction of 10% reservation of Economically Backward Classes, a majority of the seats in any public podium are subjected to reservation. This defeats the very rationale behind equality doctrine, harmonious in Articles 14 and Article 16. This was challenged and numerous petitions filed before the Hon'ble Supreme Court one of them being Youth for Equality v. Union of India^[1], the matter remains sub-judice and has been referred to a larger bench for conclusive deliberation.

The reservation policy in India, was introduced to uplift the socio-economic status of the underprivileged, under-represented and stunted masses. In India, lies a structurally, deep-rooted caste based stratification. The caste system promoted untouchability and discrimination and further divided the society into conflicting groups.

The founding fathers of the Constitution noticed the inequality present in society and introduced an exhaustive machinery to further substantive equality, devised with the intention of inducing affirmative action.

Realization of Substantive Equality guaranteed by the Constitution of India

Judge Lauterpacht of the International Court of Justice, writing in 1945, highlighted the importance of the principle of equality opined:

"The claim to equality before the law is in substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties".

Speaking of the reservation policy fostered by the Constitution of India reminds me of Edmund Burke's views in his Reflections on The Revolution in France (1790). He wrote on the growing nature of the constitution as a body that was of a perpetually continuous nature since it embodied the fluid spirit of a nation. I intend to draw attention to the doctrine of "Ut Res Valeat Potius Quam Pereat", in the construction of the constitution. It connotes that the construction of any legal provision should be preferred in a manner, which makes the legislative machinery workable.

The principle of equality when applied to a situation of caste-based discrimination has assumed a politically vulnerable concept for our society. It has embraced a critical and essential component of constitutional identity and is part of the "Basic Structure" of the Constitution.

The variability of conditions necessitates suitable modifications in the design of such rights. However, the transient elements of a formal arrangement must reflect the broader principles that remain as an unalterable thread of constitutional identity. It is not the introduction of sweeping and far-reaching changes that are objectionable, but rather their implications upon constitutional identity which pose malevolent questions.

The concepts of 'equality before law' and 'equal protection by law' under Article 14 are in fact both a positive and a negative concept. On one hand, it ensures that no privilege is to be conferred regardless of their rank, but on the other hand, postulates the application of laws alike and without discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.

The curious jurisprudential path by the Apex Court

Articles 15 and 16 were introduced with the purpose of mitigating the socio-economic status of those facing structural marginalization in Indian society. The jurisprudential trajectory of the Apex Court in the interpretation of these cases has remained intriguing. In the State of Kerala & Anr. vs N.M. Thomas & Ors., Justice Mathew, in his concurring judgment, held –

"In order to give equality of opportunity for employment to the members of Scheduled Castes and Scheduled Tribes, it is necessary to take note of their social, educational and economic backwardness….. Existence of equality depends not merely on the absence of disabilities but on the presence of disabilities. To achieve it, differential treatment of persons who are unequal is permissible. This is what is styled as compensatory discrimination or affirmative action."

The courts are often faced with interpretation and application of Article 15(4) in determining who are the socially backward classes. There is a long jurisprudential history of how caste plays a definitive role in determining the socially and educationally backward classes of citizens. What it also warrants is an elaborate investigation, collection of data, and examination of said data in a rational and scientific way.

Affirmative action, under Article 16, provides equality of opportunity for all citizens in matters of public employment. Clause (4) allows reservations in appointments or posts in favor of backward classes or classes that are not adequately represented in the services under the State. Further, Clause (4A) allows the State to make reservations in the matter of promotion to any class or classes who, in the opinion of the State, are not adequately represented in State services.

Now the question arises in maintaining a balance between equality and equity.

While the oppressed classes seek justice, members of the general category seek equity. However, speaking from a meritocratic standpoint while dealing with the veracity of reservations in today's context, a third variable namely "efficiency in service" comes to the fore.

This problem has to be determined from the facts of each case.

The nine-bench decision in Indra Sawhney held that "caste" could be a beginning point and a determinative factor in identifying the socially and educationally backward classes of citizens. Economic criteria alone cannot be a sole determinative factor to classify backwardness. Further, the total quantum of reserved seats should not exceed 50% of what is already available.

Following this was the M. Nagaraj case where the Hon'ble Supreme Court was faced with testing the validity of Article 16 clause (4A). The Court upheld its constitutional validity in creating reservations in promotions. The judgment concluded that equality was part of the basic structure of the constitution and subjected the impugned clause to satisfy the following parameters:

• Backwardness of a class of people
• Inadequacy of their representation
• Proof of overall administrative efficiency

Thus, making it incumbent upon the State to collect quantifiable data evidencing backwardness of the class and their inadequacy of representation in public employment.

In Jarnail Singh, the court introduced the creamy layer exclusion principle. Thus, the State is not required to extend reservations in promotion to SC/ST individuals who belong to the creamy layer of the said Scheduled Caste and Scheduled Tribe.

Caste, class and reservations: Way forward

"It would be tragic if the law were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society." –Friedman

The ultimate reason for the demand of equality for the members of backward and historically oppressed classes is a moral perspective. It affirms the intrinsic value of all human beings and calls for a society that provides the conditions of life which men need for the development of their varying capacities. The question of reservations makes it crucial to take into account structural conditions that people are born into and which significantly influence the formulation and achievement of their goals.

Classification on the basis of castes, in the long run, has a tendency of inherently becoming pernicious. Therefore, the test of reasonableness has to apply. When the object is elimination of castes, and not perpetuation, judicial review within the permissible limits is not ruled out. But at the same time, compelling State interest can be considered while assessing backwardness. The impact of poverty on backwardness cannot be lost sight of. Economic liberation and freedom are important.

While class does not act alone in reinforcing inequality, yet no other source of inequality is fully independent of class. Though, being born into a particular class does alleviate caste-based disabilities to a large extent, however, the fact that social inequality is completely independent of class-based discrimination cannot be ruled out. Moreover, an interactive congruence of the two features of deprivation, namely class-based destitution and caste-based discrimination, can massively impoverish members of the lower strata and make provisions of the Constitution unworkable.

What needs to be appraised is that society as a whole stands to benefit from a rational reservation scheme. India waits with bated breath for the constitutional bench to conclusively lay down the policy on reservations, particularly in light of the question of legality of excluding SCs, STs and OBCs in the 10% Economically Weaker Sections. Reservation needs to be well reasoned and balanced against social interests.

(The author is a Senior Advocate at the Supreme Court of India and acknowledges the in inputs of Ms Sumedha Sen in the writing of this article. Views expressed are personal.)