Swarnendu Chatterjee, Anwesha Pal, Ashish Sharma, and Palak Kumar

Introduction

In Janhit Abhiyan v. Union of India, the majority speaking for the Constitution Bench (five judge bench) upheld the 103rd Amendment to the Constitution for members of economically weaker sections (EWS), which include those with yearly household income of below Rupees 8 lakhs.   

There was a consensus among all the judges (five) on two issues, that reservations based purely on economic grounds is not an anti-thesis to the basic structure doctrine. The Hon’ble Supreme Court while upholding the 103^rd amendment; i.e. the EWS quota has paved the way for implementation of EWS quota to private institutions as provided under Articles 15(6) and 16(6) of the Constitution of India. However, the minority (Hon’ble CJI and Justice S. Ravindra Bhat) disagreed on the third issue: whether the Scheduled Castes, Scheduled Tribes, and Other Backward Classes should be excluded from the application of the EWS reservations.

Maheshwari J., Trivedi J., and Pardiwala J. all offered separate, concurring opinions in favour of the amendment. Thus, they upheld it in its entirety. Justice Bhatt, however, partially dissented, with the Hon’ble Chief Justice in agreement with him. Justice Bhatt’s ruling is important for understanding the concept of equality as non-discriminatory and non-exclusionary which ties together constitutional provisions into a recognisable “identity.” His opinion reflects a longstanding practice of reading the Constitution in a way that is loyal to its intent.

The authors vide this blog shall delve into the intent of the framers of the Constitution, which ultimately synchronizes with the minority opinion of the Hon’ble Supreme Court.

Intent of the Framers: A Peek through the Constituent Assembly Debates

The 103^rd Constitutional Amendment inserted Articles 15(6) and 16(6) in the Constitution of India. It introduced a reservation of up to 10% for “economically weaker sections” (“EWS”) in educational institutions and government jobs. This reservation exists to the exclusion of the groups that are already covered under Articles 15(4), 15(5), and 16(4) of the constitution.[1] Thus, in effect, existing classes of Scheduled Castes, Scheduled Tribes and Other Backward Classes are excluded. This marks a radical shift in the constitutional position when it comes to reservations. Hitherto, reservation were only made on the basis of social backwardness.

The arguments that were made by both sides in the case find their original articulation in Constituent Assembly debates. The larger idea that guided these debates was that “numerical and political minorities” should have appropriate representation in the state’s administration. The debates then were centred on how such reservations should be realised.

The constituent assembly did not consider economic disadvantage as the sole criterion for reservations. Even for members of the Assembly who supported the idea of an economic ground for reservation, they regarded it as an additional factor over social backwardness. The argument of having economic reservations only for classes that are socially or, educationally backward, resonates with the idea that populations with social and economic backwardness, are exposed to discrimination on a different levels. Thus, even when the members of the constituent assembly demanded for economic position to be included, they asked for it as an additional criteria. Mahavir Tyagi and Jerome D’Souza for example, advocated for reservations based on class in addition to caste. Tyagi essentially argued that among Scheduled Castes, those who are also at an occupational (and thereby, economical) disadvantage, should get representation. His argument is different from the EWS Amendment, however, since he did not solely depend on the indicators of income as a disadvantage but on occupational classes of labour. D’Souza too argued that caste and religion should not be independent and exclusive grounds for reservations. Alternatively, he argued for reservation to be based on the deficiencies and need, over and above their social status. He advocated for a criterion of reservations based on social, political and educational disadvantage.

Constitutional Developments

Following the debates, the House voted on reservations based on a social marker – “caste”. However, in 1951, a year after the Constitution was adopted, the debate on using economic grounds for backwardness re-emerged. An amendment was made, which granted power to the state to make provisions for the advancement of any educationally and socially backward class or for Scheduled Castes and Scheduled Tribes. The move was heavily criticised by KT Shah, who believed reservations should be for individuals as beneficiaries, as against classes. Jawaharlal Nehru, however, advanced the counter view that the constitution aims at remedying structural disadvantage, which is a result of cumulative grounds including social, economic, and educational factors.

There is great merit in the arguments put forth by Pandit Nehru. It becomes evident that the disadvantage is either seen as a social consideration, or a cumulation of factors with social disadvantage being the basis of it. When the majority excludes Scheduled Caste, Scheduled Tribes, and OBCs from the purview of the EWS reservation, it disregards the value in regarding a cumulative of factors. Moreover, it disregards that social backwardness needs to be the basis of reservations.

Reservations over the years have been justified on the grounds that historically marginalised groups have experienced social and economic disadvantage. Thus, they require special accommodations from the State. This idea was affirmed by the nine-judge bench of the Supreme Court in Indra Sawhney. However, it made a nuanced point. It never held that reservations could never be based solely on economic backwardness. Rather, because Article 15(4) and Article 16(4) talked only about social and educational backwardness, reservations could not be based on economic backwardness alone. The position after the passing of EWS is, however, different. Now, one must contend with a constitutional amendment which makes economic backwardness as the basis of equality.

The Janhit Abhiyan ruling also permits reservations to exceed the 50% threshold that was established by the Supreme Court in the Indra Sawhney case and reaffirmed in numerous subsequent rulings. Keeping aside the question of how the Supreme Court reached this arbitrary limit of 50%, one must understand that the government gave no convincing reason for why this limit should be breached. Once the ceiling has been crossed for any reason, it can be crossed again. Instead, the judgement should have asked the government to present before it the pressing concerns which justified the breaching of the 50% limit. One counter argument, used exceptionally well by the government, however, was that the entirety of Indra Sawhney judgement was based around the paradigm of reservations based on social and educational backwardness. Economic backwardness is outside this paradigm. Thus, the fifty percent limit did not apply to it. Not only did the majority in Janhit Abhiyan agree to this limited understanding of Indra Sawhney; they went one step ahead and upturned the entire logic of reservations. This was brought out beautifully by the partial dissent delivered by Justice Bhatt.

Minority opinion

Justice Bhatt begins by questioning whether it is constitutionally legitimate to exclude members of the SC, ST, and backward castes. He first examines the Equality Code (considering Articles 14 to 17). He views the Code as more than a collection of impersonal maxims. The court’s ruling places this Code in the backdrop of a nation that is still heavily caste-segregated and that continues to limit opportunities to people purely because of the caste they were born with. The founders of the Constitution specifically aimed to fight the exclusion this system fostered, and this resulted in the formation of the principles of the equality code.

The dissent, delivered by Justice Bhatt, was only a partial dissent, however, because he upheld reservations based solely on an economic criteria on the grounds that the measure had been implemented to alleviate persistent economic deprivation or poverty. The aim of the amendment, according to Justice Bhatt is to create new gateways for the poorest members of the society to access opportunities hitherto inaccessible to them due to their destitution.^[2] Thus, economic deprivation itself could serve a valid marker for differentiating them from the socially forward members of the society. Justice Bhatt’s problem lies in the exclusion of a large segment of the poor because of their so called “beneficiary” status in reservations elsewhere. Thus, the dissent strikes down the amendment on the grounds that it is discriminatory towards the SC/ST/OBC class. Its genius lies in the fact that it is able to use the arguments made in favour of the amendment as the basis to strike it down.

Justice Bhatt locates the discrimination in untouchability. He says that the Constituent Assembly had resolved to eliminate untouchability in all its forms including access to public amenities and spaces and the stigma attached to one’s caste. Further, untouchability was part of broader values tethered in Articles  14, 15, 16, 17, 18, 29(2), and 325 which all affirmed the same principle: equality. The general principles of equality were part of the basic structure of the constitution and non-discrimination (elimination of untouchability) was an important facet of it.

According to Justice Bhatt, the phrase “other than” in the amendment, used to create a distinction between classes who were already enjoying the “benefit” of reservations and classes who had up until then not been granted any reservation, did not create any reasonable classification. In his own words, the distinction “is an exercise in deluding ourselves that those getting social and educational backwardness based reservations are somehow more fortunate.” According to him, the principles in Articles 15(1), 15 (2), 15(4), 16(1), 16(2), and 16(4) are an indivisible whole and necessary to achieve equality. Thus, articles 15(1) and 16(1) which allude to formal equality cannot be used to undermine other provisions which further substantive equality. Justice Bhatt says that this same reasoning is used by the government to exclude the SC/ST/OBC community.

On EWS itself, Justice Bhatt states that the amendment creates a class to which identifiers such as caste and education are irrelevant. Rather the identifiers used are asset value, income et al. Thus, the class is a homogenous whole. Therefore, there is no intelligible differentia between the poor of SC/ST/OBC classes who are the beneficiaries of reservation elsewhere and the poor defined under Articles 15(6) and 16(6). According to Justice Bhatt, the barriers which prevented the SC/ST/OBC class from rising are still firmly entrenched in the society and there is no evidence on record which proves that these classes have risen significantly in their social status. Further, the SC/ST/OBC class, constitute almost 82% of the population of the country and in the eyes of Justice Bhatt, it is not clear how excluding them would advance the object of the economically weaker sections of the society.

Justice Bhatt showcases a remarkable level of social awareness. He argues that poverty does not affect one community or silo. Its ill effects are felt by all individuals who lie in that intersectionality. The problem with the approach of viewing individuals and communities in silos, as per Justice Bhatt is that it invisibilizes the individual and stops them from crossing the silos. Ultimately, reservations must benefit individuals and caste or education or even income is only a method of identifying those individuals. He gives the example of a tribal girl who in spite of facing equal or more economic hardship in comparison to the purported beneficiaries of the amendment combined with her social location, would be unable to avail the benefit of the reservation because she is already “privileged” with one. As per Justice Bhatt, we must stop viewing reservations as a privilege conferred on a section of the population. Rather, it must be viewed as reparations meant to correct centuries of old wrongs. Thus, as per Justice Bhatt, there is no “double benefit” that will be conferred on the SC/ST/OBC class if they are included within the ambit of the amendment. Ultimately, based on the exclusion purported by the amendment, Justice Bhatt holds that the basic structure of the constitution is violated. According to Justice Bhatt, this is because the amendment goes against the idea of non-discrimination; pervasive within the spirit of equality in the constitution.

Conclusion  

In this case, the Supreme Court has held that reservations are a mechanism to end caste-based discrimination and therefore such provisions especially the 103^rd amendment should be seen and perceived as furthering that objective. The Honorable Supreme Court while arriving at this conclusion was manifested by the argument that reservations (theoretically) can be hundred per cent.

This piece critiqued the EWS judgement by placing it in the context of the Constituent Assembly debates to cull out the original aims and objectives of the equality code. We analysed how the majority judgement neglects these objectives and upturns the logic of reservations. Further, we pointed out the lack of analysis in upholding the breach of the 50% rule. Through the analysis of Justice Bhatt’s arguments, we argued that his judgement, with its awareness of societal structures, is more in line with the constitutional vision of the framers.

[1] Constitution of India 1950, Article 15(4); Article 15(5); Article 16(4).

Swarnendu Chatterjee is an Advocate-On-Record at the Supreme Court of India; Anwesha Pal is a PhD Scholar and Teaching Assistant, WBNUJS, Kolkata; Palak and Ashish are students at NLSIU, Bangalore.