Economic criteria for affirmative action is a vague criterion, or an artificial criterion, which has no basis for discrimination in social life.
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Illustrative cases of untouchability
THE impact of ideas of taboo and social impurity is manifested not only in villages, but also in towns and cities. There are well-known incidents in cases of highly placed public persons, which have been reported in the news.
Babu Jagjivan Ram, who was the Deputy Prime Minister of India unveiled a statue of Sampurnananda, on January 24, 1978, at Varanasi. But very soon students at the university purified it with the purification method, by cow urine, cow dung, holy water from Ganges and cow milk with religious hymns, assuming that it was polluted by his touch as he was an ex-Untouchable.
Yogindra Makwana, an ex-Untouchable, and a state minister for agriculture in the Union Cabinet, stated in Delhi in a public meeting that he was not allowed to enter a temple by the priests.
The case of social discrimination again came to the fore when Jitan Ram Manjhi, the then Bihar Chief Minister (CM) and a veteran legislator, went and paid obeisance at a temple on September 29, 2014, in Madhubani district of Bihar; it was washed and purified soon after his visit. This is a case of untouchability, social prejudice and discrimination against a CM.
There was also a case of untouchability against former bureaucrat and Dalit Parliamentarian P. L. Punia, who was denied entry to a temple in Odisha in June 2011.
A caste Hindu woman of Jamnagar in Gujarat reportedly preferred to die rather than to get operated by the ex-Untouchable surgeon in 1971.
Extreme untouchability was practiced in Kerala where persons trapped in heavy floods refused rescue relief from Christians and Scheduled Castes (SCs) in 2018. The administration received lots of complaints of atrocities especially against Dalit women, and there had been cases of caste discrimination and untouchability against the SCs in relief and rehabilitation by diverting funds meant for them for other purposes. It was reported that Dalits were allegedly subjected to untouchability at Govindapuram village in Palakkad district of Kerala.
These are just some examples which demonstrate the prevalence of caste-based social exclusion, prejudices and social discrimination in Indian society. The extent of fearlessness of those who discriminate even in the cases of the highly placed persons indicates that there is still a lot of effort required to reach rule of law, in its true sense, or for the effective functioning of social democracy. Constitutional rights have not percolated to benefit the common man or the masses of constitutionally protected classes.
Also read: Why we must annihilate caste to save Indian democracy
Omissions in previous judgments
Surprisingly, courts have passed a number of judgments restricting the rights of these constitutionally protected classes or groups, and such provisions are not enforced in most states; thus, such action is unconstitutional. It is surprising that the principle of enabling power and discretion is given in a dissenting judgment by Justice T.K. Thommen in Indira Sawhney versus Union of India (1992) which gives primacy to discretion and denies reservation.
This was applied by the Constitution Bench and even after Jarnail Singh versus Lachhmi Narain Gupta (2018), has decided that Indira Sawhney is binding. Still, there is no hope of ensuring representation of members of the SCs and Scheduled Tribes (STs) in promotion. The Constitution Bench in Jarnail Singh (2018) decided that the nine judge-bench decision in Indira Sawhney is binding on the five judge-bench in M. Nagaraj versus Union of India (2006), and a three judge-bench in Jarnail Singh versus Lachhmi Narain Gupta (2022) has explained the five judge-bench decision in Jarnail Singh (2018), but the cases are still pending.
The extent of fearlessness of those who discriminate even in the cases of the highly placed persons indicates that there is still a lot of effort required to reach rule of law, in its true sense, or for the effective functioning of social democracy.
Moreover, the decision in M. Nagaraj has specifically referred to another Constitution Bench decision in R.K. Sabharwal versus State of Punjab (1995), which has already directed the implementation of the post-based roster to control the representation of the SCs, STs and other backward classes (OBCs).
Firstly, the representation of these deprived sections should be encouraged so that the constitutional mandate of adequacy of their representation could be satisfied.
Secondly, after the implementation of the post-based roster, there is no possibility of excess representation of these sections (SCs, STs and OBCs) of the society and even otherwise, the control of their representation is not in conformity with the constitutional obligation of the State to establish an egalitarian and casteless society. Whatever be the reason, after the post-based roster has already been made applicable, no further investigation of adequacy is required.
Thirdly, in conclusion the reference of Indira Sawhney is reflective of the assurance that whatever is settled by Indira Sawhney is applied and affirmed by M. Nagaraj. Though, as per Article 141 of the Constitution, the precedent could be revisited under the scheme of the Constitution. But all these express commitments or affirmations by M. Nagaraj could not allow the negation of the consequence of beneficial constitutional provision for the SCs, STs and OBCs, which is within the scheme of the Constitution.
Fourthly, I have my own reservation regarding the application of the creamy layer principle, as Indian society is deeply caste-ridden and discrimination in India is based on the social origin of a person, that is, ‘caste’. Therefore, an individual’s monetary growth or upliftment of a person could not change the psyche of the members of the society against such an individual.
Also read: Rethinking the Debate on Reservations
Reality of discrimination in India
From all angles, discrimination in India is due to the social origin of a person and not on the basis of economic standing of a person. Thus, the distinction in treatments between a person with another of the same social origin but different economic standing would perpetuate discrimination and deprivation, and would lead to a kind of untouchability, which has been abolished by Article 17 of the Constitution. Poverty by itself may not be responsible for segregation and exclusion of a person; for such exclusion, the economic condition of a person is not responsible, rather, the social origin of a person is.
The economic condition of an upper caste person may not deny such a person the basic necessities of life, like water, food and shelter, and the participation of such a person in the cultural and religious activities which ensure dignity and well-being of the person. However, members of socially deprived sections of the society in India face a worse form of discrimination as they are socially deprived, socially excluded, and the extreme, inhumane behaviour of untouchability is practiced against them. The degree may vary, but otherwise, members of the OBCs are no differently placed in the society.
But the Union as well as state governments accord no effective priority to these constitutionally protected classes. Consequently, these constitutionally protected classes suffer the denial of the governments and a casual approach of the constitutional courts, which have been made responsible for ensuring their inclusion in mainstream society.
I have my own reservation regarding the application of the creamy layer principle, as Indian society is deeply caste-ridden and discrimination in India is based on the social origin of a person, that is, ‘caste’. Therefore, the individual monetary growth or upliftment of a person could not change the psyche of the members of the society against such an individual.
Anti-caste social reformer and writer Mahatma Jyotiba Phule had said, “From the selfish religion of the Aryans, Arya Brahmins consider Shudras as lowly, unworthy, and unmindful. Shudras consider Mahars and Mahars consider Mangs as lowly, unworthy, and cunning. Arya Bhats have created a hiatus among them and barriers for inter-dining and inter-caste marriages that have resulted in different behavioral patterns and differing cultural traits among them. How can such divided people form a nation?” Economist and philosopher Amartya Sen cites Dr. B.R. Ambedkar and says, “Caste is anti-national because it divides the nation”. The house occupied by outgoing Chief Minister of Uttar Pradesh, Akhilesh Yadav was purified by his successor Adityanath in 2017.
Also read: On the Trajectory Shown by Ambedkar
These examples show that there is no social democracy in India and the anti-national work of the caste is still actively operating in India. The practice of untouchability and social discrimination (including social exclusion) is very much prevalent against the members of the SCs, STs and OBCs, despite the working of the Constitution of India for more than 74 years and independence for more than 75 years. Yet the government has enacted a constitutional provision for protecting the savarnas (upper castes), and the criteria are unfortunately a high-income ceiling, at the cost of worse-placed members of the backward classes who are not only poor but at the same time, face social exclusion, deprivation, untouchability and inhuman life conditions.
Certain members of the constitutionally protected classes/groups of SCs, STs and OBCs have obtained certain positions of power, prestige, and influence, by way of representation as mandated under the scheme of the Constitution. Otherwise, they might not have, and the status of that group would not have improved in the social system. On the other hand, if we consider the group identification of a person who is poor — and it is not clear that preferring a poor person confers a benefit on the poor conceived as a group — the preferred individual merely leaves that group and cannot be identified or associated with the group; even if there were group benefits entailed in a preference for the poor, certainly legislators or administrators are entitled to rank the improvement of socially backward classes as a group, as a social goal of more importance than elevating the poor conceived of as a social group.
Finally, the preferential programme for the constitutionally protected social group who are socially deprived sections — SCs, STs and OBCs — is because they are vulnerable because of the impact on other disadvantaged groups. On the other hand, the poor are not a class by themselves which is likely to have impact on other social groups, as such poor themselves are part of different social groups, either upper castes or even even the SCs, STs and OBCs, as per their connectivity or proximity on social factors with such other categories, as such poor can be considered discrete disadvantaged social groups.
Problem with solely economic criterion for constitutional benefit
The social group faces deprivation and scarcity which leads to hate and in general, affects the dignity of such a person who happened to be a part of a social group. The line between individual action and governmental action would be obliterated; policy like EWS reservation would oblige the State to enact laws counteracting private group-disadvantaging practices and thus, in that sense, private action would be covered by the policy.
A socially disadvantageous person cannot change their group, whereas the poor have no connection with the group. Once a poor person gets certain public benefits, such a person immediately shifts from the ‘poor’ group and won’t be able to identify themself with such a group. Adverse impact on these social groups is ultimately traceable to the fact of scarcity and such conditions are due to their social origin. A fixed number of openings or preferences for SCs, STs and OBCs lessens the number of places available to the members of other groups. What is given to one group cannot be given to another. Thus, the preference in this form is with a social purpose to protect the dignity of such a person and ultimately the social purpose of protecting the dignity of such a social group.
A socially disadvantageous person cannot change their group, whereas the poor have no connection with the group. Once a poor person gets a certain public benefit, such a person immediately shifts from the ‘poor’ group and won’t be able to identify themself with such a group.
On the same line, American legal academic Prof. William E. Forbath, in his article ‘Caste, Class, and Equal Citizenship’ has said that constitutional equality is equality of status or standing; different degrees of respect are attributed to status. Caste degradation denotes membership in a group that is seen as physically different and inferior, and identifying groups as the Other. Inferiority here continues to justify the hardest subjugation. ‘Class and interest groups’ do not need constitutional protection. With regard to them, economic commonalities do not implicate constitutional values.
Also read: Equality – Jurisprudential interest resurrected
Drawing from American civil rights history
Prof. Forbath has said that there is a familiar egalitarian constitutional tradition that we have largely forgotten. It springs from the U.S. Supreme Court’s judgment in Brown v. Board of Education of Topeka (1954); its roots lie in the Court-centred and counter majoritarian Reconstruction Era of the U.S., it takes aim at caste and racial subordination. The ‘forgotten one’ also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not the courts. Aimed against harsh class inequalities, it centred on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the ‘social citizenship tradition‘.
(Today, we associate the term ‘social citizenship’ most readily with the English sociologist T.H. Marshall and his classic lectures on the rise of the welfare State as a new ‘stage’ in the development of citizenship. As Marshall puts it, social citizenship encompasses “from [granting] the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in the society.”)
The social system and the constitutional objective of establishing an egalitarian society and social order is a difficult task, and the responsibility of the governments as well as the judiciary to discharge such functions must be exercised carefully. The social system correction is a very meticulous task, which is possible in a smooth and continuous correction of course by following constitutional values and the independence of judiciary, and the members of the judiciary are at the same time required to rise above their personal philosophy.
In January 1944, in a radio address to the nation, then U.S. President Franklin Delano Roosevelt outlined an Economic Bill of Rights for the American people. Due to the death of Roosevelt, three months later, the Economic Bill of Rights was never implemented. Twenty-four years later, African–American civil rights organisation, the Southern Christian Leadership Conference organised the Poor People’s Campaign as Black Americans were denied equality and equality protection in the U.S. The same insight drove American Baptist minister and activist Dr. Martin Luther King Jr. to launch the Poor People’s Campaign, and he picked up Roosevelt’s theme, for presenting various versions of what an Economic Bill of Rights should contain. He used the concept to educate the nation and its political leaders about the nature of poverty and the measures necessary to end it.
Also read: What Martin Luther learned from Mahatma Gandhi
The same insight drove Dr. King to evolve the principles for full emancipation and equality of Black people and the poor, and it was repeatedly discussed in rallies, demonstrations, legislative hearings and White House conferences. A demand for a ‘contemporary social and economic Bill of Rights‘ was raised, that emphasised a decent income, education, housing and full employment.
For conferring certain protections to the group, it is required to be established that there is a “continued subjugation” of a “historically disadvantaged group” by laying emphasis on continued subjugation and the “historically disadvantages” of the group.
Dr. King underscored the class-based character of his ‘Bill’. “Any ‘Negro Bill of rights’”, he wrote, “based upon the concept of compensatory treatment as a result of the years of cultural and economic deprivation resulting from racial discrimination must give greater emphasis to the alleviation of economic and cultural backwardness on the part of the so-called ‘poor white’. It is my opinion that many white workers whose economic condition is not too far removed from the economic condition of his Black brother, will find it difficult to accept a ‘Negro Bill of Rights,’ which seeks to give special consideration to the Negro in the context of unemployment, joblessness, etc. and does not take into sufficient account their plight (that of the white worker).“
The initiative that fleshed out Dr. King’s ‘Bill’ was the “Freedom Budget for All Americans”. Its prompting came from the White House Civil Rights Conference held in November 1965, where Dr. King, among others, underscored the inadequacy of the administration’s anti-poverty programmes. It was highlighted that it provided job counselling but no jobs; it targeted Black ghettos as a kind of riot control, and fostered the ‘mischievous’ notion that “the War on Poverty is solely to aid the coloured poor“. Dr. King questioned the inequality and the suffering of the people; that suffering had a social nexus, and the deprivation and social exclusion have to be dealt with firmly, was his concern, as was that the society has sufferings that needs to be corrected and people must be freed from social deprivation, and the unity of citizens was essential for the working of democracy.
Dr. King had concluded that all Americans must unite to fight poverty and create equality of opportunity. He emphasised that he was neither a Marxist nor a doctrinaire socialist; he instead advocated for a united social movement that would act within both the Republican and Democratic parties. He proposed the “Freedom Budget”, a “multi-billion dollar social investment to destroy the racial ghettos of America, decently house both the Black and white poor, and to create full and fair employment in the process.“
Philip Randolph, an American trade unionist and civil rights activist, fundamentally shaped the course of Black protest in the mid-twentieth century as he compared the idea to the ‘social investments of the New Deal‘, notingthat the New Deal’s labour legislation and public investments did more than provide jobs and foster collective bargaining. They “evoked a new psychology of citizenship, a new militancy and sense of dignity” among white workers, and so would the Freedom Budget “among millions of Negroes“, according to Randolph. It would be “their New Deal thirty years late“.
Continued subjugation of “historically disadvantaged group”
American academic Prof. Owen M. Fiss, an internationally acclaimed scholar on the subject due to his extensive research, and his recent article, ‘The Accumulation of Disadvantages,’ published in 2018, has stated that for conferring certain protections to a group, it is required to be established that there is a “continued subjugation” of a “historically disadvantaged group”. It is reproduced as under:
“The continued subjugation of a historically disadvantaged group is the product of policies that cut across all walks of life. Members of such a group are personally shunned, their educational opportunities are impaired, the jobs open to them are limited, and they are confined to living with one another in the same neighborhood, usually in the oldest and most dilapidated housing, unable to count on the most rudimentary public services. Often, members of such a group are even denied the right to vote.”
Ensuring representation by way of reservation is the fundamental principle to establish an egalitarian equality. The question is as to whether such a basis of discrimination is the social origin of a person, or whether the sole criteria of economic standing of a person is relevant. According to the social condition, a poor person does not face discrimination, deprivation or social exclusion merely on the basis of poverty.
According to global multidimensional poverty estimates, five out of every six multidimensionally poor person in India belongs to an SC, ST or OBC household: more than 50 percent of all STs are multidimensionally poor, 33.3 percent of all SCs are in the same boat, whereas the corresponding percentage among OBCs is 27.2 percent.
Prof. Fiss has found in his research that economic criteria is a very vague criterion, or an artificial criterion, which has no basis for discrimination in social life. Therefore, protection in society could be afforded to a person if such person is facing historical disadvantages and there is a continued subjugation of the group, and the person is facing such subjugation due to their membership of such group.
Also read: Why EWS reservation defeats the purpose of reservation
Glaring lacunae in EWS judgment
It is surprising that the higher castes are practicing untouchability and social exclusions in the society against the members of the constitutionally protected classes (SCs, STs and OBCs), yet we are preferring remedial measures on the basis of the economic condition of a person. Thus, the whole premise is contrary to the structure of the social system, as the remedy is required on the basis of social origin, and not on an artificial or vague basis of economic standing of a group or person.
Though a large proportion of almost 70 per cent of the total population in India is classified as SC, ST or OBC, these are divided into 6,743 castes and they have a miserable life. Though the Constitution has made many provisions for their empowerment, such provisions are ineffective as their interpretation is restrictive. The economic criteria continue to subjugate historically disadvantaged groups, which is why the use of economic criteria as the sole basis for reservation has been rejected by internationally acclaimed scholars. There is no instance of deprivation or discrimination or social exclusion against any person solely on the ground of their economic standing.
This prevalence of caste-based discrimination and untouchability is neither denied nor rejected by the Constitution bench of the Supreme Court in its judgment in Janhit Abhiyan versus Union of India (2022), nor is there any data or details in the possession of the Parliament, the government or the court that justified such change.
According to global multidimensional poverty estimates, five out of every six multidimensionally poor person in India belongs to an SC, ST or OBC household: more than 50 percent of all STs are multidimensionally poor, 33.3 percent of all SCs are in the same boat, whereas the corresponding percentage among OBCs is 27.2 percent. On the other hand, at the sub-caste level, the lowest poverty levels are among the Thakurs (nine percent), followed by Brahmins (15.9 percent) and other general caste groups (20 percent). As per available data, poverty levels are clearly highest among SCs and STs, but still solely economic criteria have been upheld as constitutionally valid by the majority as well as the minority opinions in the judgment.
Also read: The devil is in the detail: need for contemporaneous caste census in India
Even the dissenting judgment by Justice S. Ravindra Bhat, for then Chief Justice of India U.U. Lalit and himself, has not said that this criteria of economic standing alone is bad, as they have over-emphasised on the 50 percent ceiling. In my considered opinion, the court is duty-bound to test a provision with social conditions. The basic structure theory could not be denied its play, as the 103rd Constitutional amendment has changed the condition or criteria of remedial measures to undo discrimination and deprivation in the society. The reason for such a change is not evident in society, as society is still facing caste-based discrimination and extreme social exclusion.
Though the EWS reservation is capped at 10 per cent, it is nonetheless a caste-based reservation as it excludes SCs, STs and OBCs from its purview though they are economically weak in addition to being socially and educationally backward classes, and they are not adequately represented in the public services and education.
If the economic criterion is not bad, which is contrary to the scheme of the Constitution, the 50 percent ceiling is only a judicially created criteria which had no roots under the scheme of the Constitution, but it could successfully deprive the members of SCs, STs and OBCs adequate representation as mandated in Clause (4) of Article 16 of the Constitution, and the deprivation of Muslims and Christians (particularly converted) population for seven decades. Thus, the dissent by the two judges is also very limited in its approach.
The Constitution (103rd Amendment) Act, 2019, by which a sixth clause has been inserted to Articles 15 and 16 of the Constitution of India, violates the basic structure of the Constitution as it changes the identity of the Constitution. The reservation provided by Articles 15(4) and 16(4) is based on the social origin of a person. Though the EWS reservation is capped at 10 per cent, it is nonetheless a caste-based reservation as it excludes SCs, STs and OBCs from its purview though they are economically weak in addition to being socially and educationally backward classes, and they are not adequately represented in the public services and education. Moreover, their identification is based on economic as well as social and educational backwardness of the classes.
The challenge in the case was to a constitutional amendment. There has not been any question as regards fulfilment of all other requirements of Article 368 of the Constitution while making the amendment in question and insertion of the relevant clauses to Articles 15 and 16. The challenge is founded on, and in fact could only be founded on, the premise that the amendment violates the basic structure of the Constitution in the manner that destroys its identity.
According to the principal part of the challenge, the Equality Code (Articles 14–18), an essential feature of the Constitution, gets abrogated because of reservation structured only on economic criteria, and because of exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from its benefit. Therefore, the entire challenge is essentially required to be examined on the anvil of the doctrine of basic structure.
Justice Dinesh Maheshwari concluded his judgment by saying that “using the doctrine of basic structure as a sword against the amendment in question and thereby to stultify State’s effort to do economic justice as ordained by the Preamble and [the Directive Principles of State Policy] and, inter alia, enshrined in Articles 38, 39 and 46, cannot be countenanced.” Further, he wrote that the provisions contained in “Articles 15 and 16 of the Constitution of India, providing for reservation by way of affirmative action, being of exception to the general rule of equality, cannot be treated as a basic feature. Moreover, even if reservation is one of the features of the Constitution, it being in the nature of enabling provision only, cannot be regarded as an essential feature of that nature whose modulation for the sake of other valid affirmative action would damage the basic structure of the Constitution. Therefore, the doctrine of basic structure cannot be invoked for laying a challenge to the 103rd Amendment. In this view of the matter, the other contentions and submissions need not be dilated herein.”
(The third, concluding part of this piece will be published later this month.)
