Kashish Makkar

The proposed amendment will be a herculean task for the NDA, and if successful, the amendment could be called nothing short of a “mini-constitution”.

A 10% reservation for economically weak upper castes, in both higher education and public services, is said to be the trump card of the NDA in the road to general elections. However, the Constitutional Amendment Bill before even being tabled in the Parliament had been declared by journalists, politicians and scholars alike to be bristling with legal issues. Some have even gone to conclude that the amendment will definitely be unconstitutional, and thus will be struck down.

In this article, I am going to break down these legal issues that have been cited by scholars and practitioners to term the policy unconstitutional. I begin with analyzing the genesis of reservations and how the principles regarding its application have developed. I will then analyse various problems that the above principles pose to the policy proposed by the NDA. I will also break-down how the mainstream media and scholars are not asking the right questions. This is on account of the fact that they have missed the crucial aspect of how a constitutional amendment can overrule the judicial decisions which provide the basis of the challenge to the amendment.

In the last part, I will leave the readers with an opinion that this policy is a herculean task taken up by the government, and if it sustains, it will amount to “a mini-constitution”, like the 42nd Amendment to the constitution.

The genesis of reservations

The idea of securing reservations for various castes, classes, or categories of citizens did not originate as a measure for affirmative action after the constitution was promulgated. Instead, it emerged in the colonial era as a policy for ensuring representation to various categories of citizens in electorates. Each category was ensured representation based on the weightage that they had in terms of population, it is popularly called as the Communal Award. An edict of this policy that carried its force in the Indian Republic by virtue of Art. 372 was widely known as Government Order passed in 1927 in the Madras Presidency.

The G.O. of 1927 secured seats for particular castes, religions in medical and engineering colleges in the State of Madras. The order mandated that:

“for every 14 seats to be filled by the selection committee, candidates used to be selected strictly on the following basis: Non-Brahmins (Hindus) – 6 ; Backward Hindus – 2 ; Brahmins -2 ; Harijans – 2 ; Anglo-Indians and Indian Christians – 1 ; Muslims – 1”

This order was struck down as being violative of Art. 29(2) as it denied admission to citizens in educational institutions on grounds of religion, race, or caste.[1] This striking down of the order as unconstitutional gave the birth to the First Amendment to the constitution. The first amendment brought Art. 15(4) which empowered the state to make reservations for socially and educationally backward classes of citizens and SCs and STs, despite Article 29 and 15(1). This amendment was brought to make reservations for citizens in educational institutions and other social welfare schemes at par with those available for Government service under Art. 16(4). It forms the basis of reservations guaranteed in the status quo.

Therefore, moving away from a policy of proportional reservation to all the communities, the reservations in the Republic of India were finally determined to be limited to only for backward communities, both in education and employment. As a result, a fundamental question that arises with the proposed policy of NDA government to grant reservation to the economically weak, hinges on whether they can be classified as backward?

Who can be classified as ‘backward’?

Following the insertion of the first amendment, the state of Karnataka introduced reservations for backward classes and ‘more backward classes’ under article 15(4) to the tune of 50%, in excess of existing reservations for SCs and STs. The same was challenged, and it produced the landmark judgment of MR Balaji v. State of Mysore which became the defining law for reservations in India. MR Balaji among others settled the question of what amounts to a backward class:

“The backwardness under Article 15(4) must be social and educational. It is not either social or educational, but it is both social and educational.”[2]

A clarity in this regard was later brought by the much talked about judgment in Indra Sawhney v. Union of India,[3] where it was said:

“…backwardness by itself is not sufficient to warrant reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is comparable to that of the Scheduled Castes and the Scheduled Tribes Reservation. Reservation is a remedial action specially addressed to the ill effects stemming from historical discrimination. To ignore this vital distinction between affirmative action short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the constitutional grant of power specially addressed to the constitutionally recognised backwardness.”[4]

Therefore, it is the historical oppression which has been identified as a determiner for providing any class of citizens with the benefits of reservation. A constitutional amendment has been proposed by the NDA to bring in economic reservation in order to surpass the above hurdle that limits the classification of backward classes to historically oppressed.

However, the constitutional amendment has to pass not only the test of procedure prescribed in the constitution for such an amendment, but also, it must also satisfy that inclusion of economically weak upper castes in the definition of backward classes doesn’t violate the basic structure of the constitution. Therefore, the question isn’t, ‘Whether the economically backward can be classified as backward and thus eligible for reservation?’. But, the question is:

 ‘Whether a harmonious construction of ‘backward’, that includes both economically weak upper castes and historically oppressed backward classes, violates the basic structure of the constitution?’  

However, the above challenge to the proposed policy of the NDA is not the the only question that stands. Instead, there are several others.

Reservation in employment: A vehicle for sharing power

Apart from clarifying the term ‘backward’ the Supreme Court in Indra Sawhney, made a few other remarkable observations pertaining to the purpose of reservation in public employment:

“The provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Article 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social and therefore, educational and economic backwardness.”[5]

Clearly, economically weak upper caste population cannot get reservation in public employment if the purpose of such a reservation was envisaged for giving due share of power to those who have remained out of it due to historical reasons. This is simply on account of the fact that upper caste population has controlled state power and the only claim that they have in the current reservation for public employment is economic upliftment.

However, it is but natural that with a constitutional amendment the NDA can set aside the basis of Indra Sawhney, i.e., it can amend Art. 16 to change its purpose, and make it inclusive of ‘alleviation of poverty’. In that case, the question that needs to be asked is not, “Whether economically weak upper castes can secure reservation in public employment?”. But;

“Whether an amendment in Article 16 that makes alleviation of poverty an aim of reservation, at par with sharing of state power with historically disenfranchised, violates the basic structure of the constitution?”

Reasonable Limits on Reservation

MR Balaji, the defining case in the law governing reservations rejected the argument that there is no upper limit prescribed in Art. 15(4) and 16(4) with respect to the extent of reservation, simply because the provision doesn’t mention the same. The Apex Court ruled that since these provisions are special provisions they must be within reasonable limits. Following this, the reasonable limit in Indra Sawhney was accepted to be at 50%. This was accepted as a limit of 50% ensures adequate representation, and the purpose of these special provisions is to ensure adequate representation and not proportionate representation.[6] However, the court did recognise the potential where such a reasonable limit could be surpassed:

“While 50% 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.”[7]

The constitutional amendment proposed by the NDA is supposed to bring in 10% reservation for economically weak upper castes, over and above the 49.5% reservations that exist nationally for SCs, STs, and OBCs. Therefore, the reservation will exceed the reasonable limit prescribed by the Apex Court. It is not the case that there doesn’t exist more than 50% reservation in India. Infact, in both Tamil Nadu and Maharashtra there exists a reservation above the reasonable limit prescribed by Indra Sawhney. Therefore, the question to be asked is not, “Whether the NDA can go against the mandated 50% limit on reservations in providing reservations to economically weak upper castes?”. But,

“Whether providing reservation to economically weaker upper castes is a special and extraordinary situation inherent in the great diversity of this country to justify breaching the reasonable limit on reservations?”

Sustainability of the Amendment

Having noted the right questions that surround this policy, for the amendment to sustain it would have to provide a definition of Backward Classes which is not ultra vires the basic structure. Similarly, it has to fundamentally alter the purpose of reservations in employment to include poverty alleviation at par with sharing of state power with the historically disenfranchised. Moreover, later, when the amendment is challenged before the Apex Court, the government has to satisfy that the conditions in the status quo are special and extraordinary that it was required to exceed the reasonable limits on the reservations. Such an amendment to the constitution will not be a simple constitution amendment. Apart from Part III of the constitution, it would require a change to the Directive Principles of State Policy (Art. 38, 46), an amendment to the Article 335 of the constitution etc.

Therefore, it will be a herculean task for the government in power, and if successful, it will be called nothing short of a “mini-constitution” in line with the 42nd Amendment to the constitution.

Kashish Makkar is one of the Founding Editors of the Law School Policy Review.  

[1] State of Madras v. Champakam Dorairajan, 1951 AIR 226.

[2] MR Balaji v. State of Mysore, AIR 1963 SC 649.

[3] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

[4] Indra Sawhney, Para 294.

[5] Indra Sawhney, Para 482.

[6] Indra Sawhney, Para 807

[7] Indra Sawhney, Para 810, 859.

Image Source: LokSabha TV