Indian courts have been emphasising merit and have been concerned about the dilution of “merit”. In several reservation matters, the courts have been more interested in protecting the interests of general categories.The Indian Constitution as a social document promises social justice and therefore, mandates making of special provisions in favour of those who have been historically discriminated against. Due to political and electoral compulsions rather than constitutional promises, successive governments, invariably on the eve of elections, have been tweaking the reservation policy. So, it was not surprising when the Modi government introduced 10 per cent reservation for the economically backward communities ahead of the 2019 general election. The Supreme Court has now upheld the validity of the 103rd constitutional amendment. The amendment had many firsts. For instance, economic criterion was provided for this new category of affirmative action: The Scheduled Castes, Scheduled Tribes and non-creamy layer Other Backward Classes were excluded from the newly inserted clauses of Article 15(4) and 16(4). The ceiling of 50 per cent reservation was breached and the individual rather than the group became the basis of backwardness. Justice Ravinder Bhat and the outgoing Chief Justice of India U U Lalit, however, dissented with the majority view of Justices Dinesh Maheshwari, Bela Trivedi and J B Pardiwala.
A closer look at the judicial response to reservation policies from Dorairajan (1951) to M R Balaji (1963) to Indra Sawhney (1992) to M Nagaraj (2006) shows that the Indian judiciary has not been quite supportive of such policies. In many cases, it created new conditions in the implementation of such policies by introducing several exclusions/doctrines/rules etc. In fact, Parliament had to amend the Constitution through the 77th amendment to overturn Indra Sawhney judgment against reservation in promotions. Similarly, the 85th constitutional amendment was passed to undo the Virpal Singh Chauhan (1995) and Ajit Singh (1999) judgments that had introduced the “catch up rule” under which general candidates, who are promoted after SC/ST candidates, will regain their seniority over earlier promoted SC/ST candidates.
Basically, Indian courts have been emphasising merit and have been concerned about the dilution of “merit”. In several reservation matters, the courts have been more interested in protecting the interests of general categories. As a matter of fact, the EWS reservation is for the erstwhile general candidates: The Rs 8-lakh family income provision covers over 90 per cent of our population.
Constitutional amendments are rarely struck down since this can be done only on the narrow ground of the amendment being violative of the basic structure of the Constitution. Since 1973, when the basic structure doctrine was propounded, over 70 amendments had been passed but only five have so far been struck down. The NJAC was the last one in 2016.
As per M Nagaraj (2006), there are two tests that courts use in any challenge on the ground of basic structure — the width test that examines the boundaries of amending power and the identity test under which the Supreme Court examines whether the latest amendment alters the identity of the Constitution. No amendment can change the personality of the Constitution. To satisfy the test, one has the heavy burden to prove that the Constitution after the amendment is virtually unrecognisable.
India’s affirmative action programme so far was catering to only historical injustices and social backwardness. The extension of this benefit to others, in the opinion of Justice Maheshwari, won’t change the identity of the Constitution. He observed that the new reservation is in furtherance of the Preamble’s goal of achieving justice — social, economic and political. The other judges were also of the view that any provision that is consistent with fundamental rights and directive principles cannot be held to be in the teeth of the basic structure doctrine.
The majority verdict is right in saying that though reservation on economic basis is new it has not made the Constitution unrecognisable. Justice Maheshwari has quoted a number of judgments in which poverty was mentioned as a fundamental source of backwardness. Justice Trivedi said the legislature best understands the needs of the people. The majority does have a point in holding that the basic structure doctrine does not bind Parliament from laying down the economic criterion. Such a basis does not impinge on the equality code of the Constitution. Justice Maheshwari held that poverty is not merely a stage of stagnation but a point of regression.
But then, economic disadvantage is individual, unlike caste discrimination. It carries no social stigma. The Court has gone against the earlier precedents on this point, which is why Justice Bhat was not able to persuade himself to agree with this reasoning, particularly when SC/ST/OBC categories have been excluded. The majority was of the view that such an exclusion was inevitable for the true operation and effect of new policy. If existing beneficiaries are not excluded, it would amount to excessive benefit and advantage. Justice Maheshwari said that in the vertical reservation provided to these groups also, others are excluded. He went on to say that those who are themselves receiving the benefit of others’ exclusion cannot object to their exclusion in the reservation policy made for others. Justice Bhat observed that since the bulk of the poorest people belong to SC/ST/OBC groups, their exclusion is not right. The majority was also of the view that Parliament is entitled to experiment with new policies.
The majority also cited a number of earlier judgments on the 50 per cent ceiling such as N M Thomas (1976), in which Justices Fazal Ali and V R Krishna Iyer observed that the arithmetical limit cannot be pressed too far. In Vasanth Kumar (1985), Justice Chinnappa Reddy observed that “for a court to say that reservation should not exceed 40 per cent, 50 per cent or 60 per cent would be arbitrary and the Constitution does not permit us to be arbitrary”. Even Indra Sawhney had kept a small window for the government to go beyond the 50 per cent ceiling. The real question is would the Court have permitted such a breach at the all-India level if the same had been done for the existing beneficiaries of the reservation policy. Justice Maheshwari admitted so when he observed that the 50 per cent limit was for the benefit of general candidates and it causes no injustice to the reserved categories. Justice Bhat, though, felt this may open the floodgates.
Surprisingly, while the majority judges have raised questions about the desirability of continuing the reservation policy, they themselves have upheld the extension of reservation to a new group. Only time will tell if this is the beginning of the end of affirmative action.
The writer is a constitutional law expert