Adequate representation of different sections of society is the essence of democracy. By providing an economic basis for reservation, Parliament has tried to deprive social democracy and democratic rights to all sections of the society. C R SasikumarOwen M Fiss, professor at Yale University, has argued that “economic criteria” is artificial, and has no basis for discrimination in social life. On the same line, William E Forbath of the University of Texas, said that constitutional equality is equality of status or standing; different degrees of respect are attributed to status.
Caste degradation denotes membership of a group that is seen as physically different and inferior. Class and interest groups do not need constitutional protection: Their economic commonalities do not demand invocation of constitutional values. Use of economic criteria to understand marginalisation can result in the subjugation of historically-disadvantaged groups. This is why scholars reject economic criteria as the sole basis for understanding discrimination. There is no instance of deprivation or discrimination or social exclusion against any person solely on the ground of her economic standing. For instance, Babu Jagjivan Ram, the then Deputy Prime Minister, was insulted for inaugurating a statue in Banaras in 1978 because of his caste.
India is a unique country where even a President could reportedly be insulted at a temple. In another instance, Jitan Ram Manjhi, the then chief minister of Bihar, faced similar humiliation. The examples are far too many to list. There is enough evidence that points to the practice of untouchability and social discrimination continuing against the members of the erstwhile fourth varna, “Shudra”. The five-member Constitution Bench that heard the validity of the 103rd constitutional amendment did not reject this fact, yet the majority verdict held that the introduction of economic criteria in reservations is constitutionally valid. Even the dissenting judgment by Justice Ravindra Bhat with the outgoing CJI U U Lalit did not say that the “criteria of economic standing alone” is bad, as they emphasised the 50 per cent ceiling. This 50 per cent ceiling, a judicially-created criteria with no roots in the Constitution, could deprive members of SC, ST and OBC communities, as well as the deprived among the Muslims and Christians.
Justice Dinesh Maheshwari justified the economic criteria and held the view that the “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 view is contrary to the scheme of the Constitution and the principles settled by a larger bench in Indra Sawhney (1992). Justice Bela M Trivedi held 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 that the “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”. In a case where the Supreme Court has upheld the reservation for a class, which does not deserve such a protective right, any suggestion to restrict or limit the rights of a class that has been historically deprived and socially excluded is against the spirit of the Constitution and is constitutionally impermissible. The honourable judges do not seem to understand the social conditions of the society wherein a President of India or a Chief Minister can face discrimination on the basis of their caste. To deny the recognition of social factors and to recognise economic factors alone to mark discrimination is constitutionally perverse and is meant to further perpetuate deprivation and even untouchability, which is abolished by Article 17 of the Constitution.
The rights are derived from the constitutional values, which were adopted by the Constituent Assembly after a marathon process of deliberations. Kesavananda Bharati (1973) held that the basic features of the Constitution are unalterable. Democracy is one of the basic features of the Constitution. Social democracy is the real facet of democracy. Adequate representation of different sections of society is the essence of democracy.
By providing an economic basis for reservation, Parliament has tried to deprive social democracy and democratic rights to all sections of the society. The savarnas or upper castes, who constitute 10 to 15 per cent of the total population are already represented in 45 to 50 per cent of the total services, whereas the SCs, STs and OBCs constitute the majority of this country, and are only provided 49.5 per cent reservation. The latter, however, are yet to achieve that level of representation in services and in educational institutions while the upper castes are already overrepresented in these sectors.
Moreover, reservation in promotions for SCs and STs is yet to be implemented 27 years after the 77th Amendment was passed. The Constitution Bench in Jarnail Singh (2018) said that Indra Sawhney is binding on M Nagaraj (2006). Yet, effective implementation of “reservation in promotion” is yet to see the light of the day.
Parliament failed in its duty when it altered the constitutional philosophy to redress discrimination without deliberation: Neither did a parliamentary committee discuss the 103rd amendement nor a House committee effectively consider its provisions. The issue in this case is whether the category of “social and educational backwardness”, devolved by the founders of the republic, could be altered to “economic backwardness” without any scientific basis or any material that demonstrates changes in the social conditions. The Supreme Court ought to have also discussed the constitutional question of “deliberative democracy”, since Parliament had not adhered to it while passing the amendment.
The Janhit Abhiyan judgment is a negation of the constitutional principles that the Constituent Assembly accepted while drafting the visionary document. A deep-rooted caste system pervades Indian society. It has deprived the members of the backward classes (SCs/STs/OBCs) of equal treatment in the society. It has also denied human dignity to 85 to 90 per cent of the population.
Indian society has developed on the edifice of graded inequality. The Brahminical social order sanctifies social discrimination and gradation. Ambedkar, who himself suffered indignity, could develop principles (in the Constitution) to protect human dignity by assuring equal protection to the members of socially-marginalised sections of society.
The Brahminical forces are firm believers in social inequality and they work for its perpetuation. The Constitution intends to establish an egalitarian social order, allowing no scope for discrimination of any kind. Through the Constitution, Ambedkar was successful in laying the foundation for an egalitarian society by eliminating discriminatory factors including religion, race, caste, sex, descent, place of birth or residence etc.
The Janhit Abhiyan judgment, unfortunately, is a denial of the constitutional rights of a larger section of the population that ought to be protected under the scheme of the Constitution of India.
The writer is senior advocate, Supreme Court of India