*Meraj Ahmad
(Source: The cover image is a work of the author)
Caste, in its characteristic feature of fixed concomitant static socio-economic rights, has persistently influenced India’s political and constitutional discourse. The Constitution of India, therefore, through its twin provisions of Articles 14 and 16(4), empowers the state to engage meticulously with the caste question. It is in this context that the Bihar Government conducted the caste survey, which underlined and laid bare the overwhelming difference in socio-economic privileges. In response, the Bihar Government introduced two amendments, seeking to expand reservations from a threshold of fifty to sixty-five per cent and, thus, aimed to provide for a more equitable paradigm, but which were subsequently declared ultra vires to the Constitution and violative of the equality clause. In doing so, the Patna High Court in Gaurav Kumar based its decision on Indra Sawhney, which the author argues commits a grave analytical error. The paper, therefore, attempts to challenge the legitimacy of the reservation threshold posited in Sawhney, which the author argues is not merely constitutionally suspect but also a ghostly relic of Dorairajan. It dissects the Patna High Court judgement and simultaneously the fallacy of Sawhney and aims to offer a normative judicial philosophy in congruence with substantive equality and the broader constitutional promise of social justice—one that the Supreme Court now has an opportunity to rectify in Gaurav.
In the year 2024, the Divisional Bench of the Patna High Court struck down two amendments, which breached the fifty per cent threshold as mandated in Indra Sawhney v. Union of India (‘Sawhney’). These amendments emerged out of the controversial Bihar Caste Census, also known as the Bihar Caste Survey, which sought to achieve affirmative action proportionate to a community’s numeric size. While similar laws have been promulgated in various states and subsequently struck down, the divisional bench in Gaurav Kumar(‘Gaurav’) offers the Indian Supreme Court an opportunity to revisit its Equality Jurisprudence — particularly to reconsider the relationship between affirmative action and substantive equality. The present article, therefore, advances two principal arguments. Firstly, that the breach of the fifty per cent threshold sits in congruence with the constitution’s mandate and secondly, that ‘adequate representation’ must be understood and read as requiring ‘proportionate representation’. In doing so, it challenges Sawhney’s reading of Article 16(4). The principal argument is thus that the design of equality adopted in Gaurav stems from Indra Sawhney, which remains conceptually muddled and in dissonance with the scheme of equality so envisioned. Simply put, the Bench in Sawhney attempted to strike a middle ground, (at the very expense of the goal of equality) between two versions of equality— formal, which requires that all individuals be treated equally before the law and substantive, which mandates a relook into existing entrenched hierarchies and demands differential treatment, accounting for existing structural disadvantages to obtain actual equality
The article proceeds as follows — Part II briefly examines the Patna High Court’s judgment, while Part III provides a brief overview of India’s reservation jurisprudence. Part IV evaluates the constitutional legitimacy of reservation ceilings, while Part V develops the argument for reading ‘adequate representation’ as mandating proportional representation. Part VI concludes.
II. UNDERSTANDING THE PATNA HIGH COURT JUDGEMENT
The High Court, in its 87-page judgement, invalidated the amendments on three primary grounds. Firstly, that the concerned amendments violated the upper reservation limit, first espoused in Balaji and reiterated in Sawhney. Secondly, that doing so resulted in ‘the total frustration of merit.’ In coming to this conclusion, the bench rigidly adhered to the Supreme Court’s mandate, holding that the ability of the State to provide affirmative action must be regulated to balance ‘merit.’ In the understanding of the court, while affirmative action aims to recompense for the long-standing deprivation, it cannot arrive at the cost of merit when it either totally or even considerably effaces it. Thirdly, in its adherence to Sawhney, held that ‘adequate representation’ did not mean ‘proportionate representation’ under Article 16(4) which enables the state to accord reservation to such backward classes, which in its opinion remains inadequately represented.
In continuance with the same vein, the bench opined that proportional representation of sort in any event, is beyond the constitutional framework, and stamped the opinion in Sawhney, that the principles of proportionate representation is only and only provided temporarily in Articles 330 and 33. The logic of these ‘special provisions,’ therefore, that provide for reservations in favour of Scheduled Castes and Scheduled Tribes, must not be extended to sub-clause 4 of Article 16. It affirmed the rationale in M. Nagraj v. Union of India, which held that the fifty percent threshold was a constitutional requirement without which Article 16 would collapse. Therefore, the fifty percent threshold was seen by the Divisional Bench was seen as balancing the rights of the general category. In doing so, it thus struck the very underpinning rationale of the Bihar Census, which was based on claims of proportionate representation. However, critics contend that the judgement suffers from an overemphasis on merit. This overemphasis, in turn, it is argued, reflects a fundamental misinterpretation of substantive equality, and resides on the bedrock of Sawhney’s interpretative errors, which attempted to reconcile and a wrongly set premise of substantive equality.
However, the author contends that this understanding of the court is erroneous and stems directly from Sawhney’s interpretative errors and has been elaborated in Part IV and Part V of the blog. Admittedly, the High Court had a limited scope of augmenting any change, with the mandate of the corpus of reservation jurisprudence lurking in its shadow.
III. TRACING INDIA’S AFFIRMATIVE ACTION JURISPRUDENCE
The Indian Supreme Court first engaged with affirmative action in The State of Madras v. Champakam Dorairajan, (‘Dorairajan’) where it examined the validity of a pre-constitutional order prescribing quota based on caste and religious lines. In considering the matter, the Indian Apex Court held Article 16(4) to being an exception to Art 16(1). It therefore, followed, that the Supreme Court had subscribed India’s affirmative action paradigm to formal equality which would go on to influence a catena of judgements. Dorairajan, therefore, was ridden with a problematic interpretation, and laid the foundations of the judiciary’s perennial dialogue with reservations. As a response to the primitive approach adopted in Dorairajan, the provisional Parliament, in disagreement with the view, introduced the first amendment to the constitution, inserting sub-clause 4 to Article 15 granting the State the authority to make special provisions for the purposes of advancement of socially and educationally backward classes of citizens. However, despite the amendment, which precludes reading of discrimination into special provisions so done for the upliftment of the backward classes, the critical view of reservations continued. In The General Manager v. Rangachari, (‘Rangachari’) for instance, the Supreme Court reiterated the exception principle as previously espoused in Dorairajan, thereby continuing to view affirmative action as an exception to equality.
Subsequently, the principles of Rangachari, was elaboratively fleshed out in M.R Balaji v. State of Mysore, (‘Balaji’). Here, the court not only reiterates formal equality, but also imposed the infamous fifty per cent threshold on reservations, where any deviation was considered to contravene merit. The underpinning rationale, appears to be, that reservations of more than half of the vacancies, is per se, violative of equality under Article 14 and 16 of the Indian Constitution, a premise that remains heavily unfounded and detached from the broader promise of substantive equality. The court arrived at this conclusion despite its acknowledgement that advancement of weaker sections of society, serves the society at large. This commitment to formal equality was subsequently reaffirmed in T Devdasan v. Union of India by a 4: 1 majority. However, in an interpretation which could be categorised as being embryonic of N.M Thomas, Justice Subba Rao questioned these very premises. In particular, he cast skepticism over the legitimacy of the threshold as laid in Balaji, and engaged with the broader judicial uneasiness surrounding reservations. This, therefore, helped establish the departure from a formalist approach to one where reservation would eventually be held to be an emphatic facet of equalityIn embracing substantive equality, the Apex Court in N.M. Thomas also set aside the rigid reservation threshold. This line of jurisprudence, ultimately, culminated in the judgement of Indra Sawhney v. Union of India (‘Sawhney’) concerning the extension of affirmative action to Other Backward Castes (OBCs). While, the bench here upheld substantive equality, it paradoxically subscribed to the fifty per cent threshold in Balaji. In Sawhney, the consideration before the nine-judge constitutional bench, things emerging from the backdrop of the Mandal Commission report was thus, among other aspects to put a stop to the growing ambiguous discourse on reservation threshold. While, it did affirm a criterion, the author contends that than to conclude and quell the issue it went on to aggravate the patchy jurisprudence.
This interpretative bedlam is further explained in Part IV of the paper where the author contends that the existence of this ceiling is a direct consequence of this interpretative misstep and which runs at odds with the idea of substantive equality.
IV. REASSESSING THE LEGITIMACY OF RESERVATION CEILINGS
The primary criticism of the reservation ceiling is its straight jacket formula and an inflexible constraint, which relies on no substantial basis to determine quantum of reservations and contravenes the very notion of substantive equality. This limitation finds no textual ground, and on the contrary, restricts the ability of states to assess the inadequacy of representation and implement reservations in accordance with the socio-political realities, as vested in the Constitution. While it is argued that Sawhney has balanced both versions of equality, the vision of substantive equality cannot be meaningfully realised without invading formal equality. Substantive equality, therefore, is achieved only when there is an absolute absence of all systematic social impediments to each and every member of the society.
To that end, the current part discusses the tenability of breaching the reservation ceiling. Part A of this section aims to showcase the interpretative errors of Indra Sawhney while Part B attempts to argue against the arbitrary distinction that caste-based reservations are subjected to, owing to the judgment in Janhit Abhiyan.
A. RETHINKING THE FIFTY PER CENT RULE IN INDIRA SAWHNEY
The court in Indra Sawhney, attempted to reconcile two fundamentally opposite concepts in the same breath. Firstly, it affirmed N.M Thomas, and therefore, substantive equality while secondly, it simultaneously affirmed the fifty per cent rule as opined in Balaji. It is in this light, that the author contends that the judgement in Indira Sawhney suffers from a ‘jurisprudential double blind.’ The fifty per cent threshold and Art 16(4) being an exception to Art 16(1) are closely affiliated and reflection of formal equality. Imposition of such rigidness, lacks a reasonable footing.
While some posit that Indira Sawhney has created a balance with the conception of the threshold. Other scholars contend that the ‘balance’ in Sawhney perpetuates and entrenches the dual hierarchy of caste and privilege, as historically marginalised communities, despite their numeric majority, are subjected to an arbitrary and unscientific threshold. Despite its acknowledgement that proportional representation was relevant in advancing equality, it nevertheless deemed the limitation to be reasonable. The very basis of this threshold is, therefore, based on an understanding of formal equality. If the threshold (X) is derived from formal equality (Y), and the Court has since rejected Y in favour of substantive equality, then X loses its foundational basis. Once the premise is no longer valid, the conclusion it supports must also fall. Although, one may contend that the existence of threshold (X) may be justified when it serves other additional purposes, such as for instance, administrative efficiency and thus may not necessarily fall in the absence of Y, the same would run against the interpretation in Sawhney, where the court opined ‘administrative efficiency,’ to be immeasurable and not immune to sacrilege. Therefore, unless threshold (X) explicitly gathers mandate from other variables (A), which is not the case here, it would remain unfounded and irreconcilable with the design of substantive equality. This also displays the interpretative errors of Sawhney that have gone on to ghost the Divisional Bench in Gaurav.
Equally troubling is the court’s omission in engaging/acknowledging this inherent inconsistency, which cannot reside together and its failure to articulate why any breach of the threshold amounts to it being unreasonable. This balancing approach, therefore, is conceptually muddled and tilts towards a Balaji philosophy. The repercussions of this patch work jurisprudence are clearly evident in the Maratha Reservation case, concerning the Maharashtra Reservation Act aimed at increasing the total reservation to over fifty per cent, where Justice Bhat implicitly characterised reservations to being an exception to equality. In fact, Pandian J categorically opined that the fifty percent threshold was rather the orbiter in Sawhney and must not bind subsequent courts. The confusion is clearly palpable through the reliance on Ambedkar’s speech in contending different positions before the bench in the Maratha Judgement.
It is therefore that the author contends that the very existence of the fifty percent threshold lies not owing to its uniform adherence to an approach but rather, as an error emerging in Sawhney through its proposition of a patchwork jurisprudence. The judgment asserts that the scale of social disadvantage and the numeric composition of the class become irrelevant in determining the quantum of reservations. It is, therefore, marked by interpretative, conceptual and philosophical slippages, and reeks of casteism, and merits reconsideration in Gaurav. This casteist approach is permeated given that the Supreme Court’s ruling in Janhit Abhiyan where it draws an arbitrary distinction on the fifty percent threshold.
B. JANHIT ABHIYAN AND THE ARBITRARY DISTINCTION
In Janhit Abhiyan v. Union of India, the Indian Supreme Court upon examining the 103rd amendment, concerning economic reservations, upheld its validity by a slim 3: 2 majority and marked a rare instance of a sanctioned trespass of the mandate in Sawhney. However, in upholding its constitutionality, the court has effectively laid out that non-caste-based schemes are not subjected to the fifty per cent threshold. While a breach has been allowed in instances concerning extraordinary circumstances, caste-based reservations have received much higher scrutiny. While much of existing literature focuses on the dissenting opinion which focuses on the exclusion of SCs and STs from the EWS Scheme, the author here contends that by subjecting caste based schemes to a much rigid cap, the Apex Court, has inadvertently, made an arbitrary distinction which is prima-facie discriminatory and which are prohibited since judicial decision must not be prejudiced, basis Seervai and the dissent in Mirajkar.
V. READING ADEQUATE REPRESENTATION AS PROPORTIONAL REPRESENTATION UNDER ARTICLE 16(4)
As provided earlier, the Divisional Bench’s understanding that proportional representation was beyond the constitutional framework formed a premise in annulling the amendment as constitutionally impermissible. However, in the present section, the author advances the paper’s second core argument— that ‘adequate representation’ must be read as ‘proportionate representation’ under Article 16(4) and how it fits within the constitutional framework. In Part A of this section, the author presents an understanding in consonance with proportional representation via adopting an originalist reading of Article 16(4 while Part B focuses on extending the underlying logic in Article 330 and 332 to the paradigm of 16(4).
A. AN ORIGINALIST READING OF ARTICLE 16(4)
While constitutional provisions are dynamic and continue to evolve, the interpretations must not be divorced from the informed intent behind their enactment. Therefore, the ever-changing nature must engage with intentionalism and not render the text redundant. However, the author contends that in the context of Article 16(4), the judiciary has displayed a failure to give due-effect to the underlying intent. Such an argument, is buttressed by the Constitutional Assembly Debate, which is reproduced below —
“Ujjal Singh : I want this clause ‘who is in the opinion of the state are not adequately represented’ to be deleted.
Chairman : The result would be, even if inadequate representation is made, it will be enough.
Chairman : You say ‘remove the word adequate.’ Although you are 20%, they will say, “reserve only 5%.” What can you do?
C Rajagopalachari : He is under the impression that reservation is limited to the proportion of the population.
K.M Panikkar : […] Therefore, you are adequately protected under this clause, while if you take it away, what happens? Any provision that is made goes up to the court and the court may say, look here, 13% population, 13% has been provided, it is adequate representation. For your security, it is absolutely necessary to state whether you are adequately represented.”
Therefore, an originalist reading of 16(4) reveals that the deliberate choice of preferring adequate representation was driven by a conscious decision not to subject reservations to a community’s numeric strength. The objective, therefore, stemmed from an understanding that affirmative action was intended to extend beyond demographic proportion. However, in its imposition of a rigid fifty per cent cap on reservations, the Indian judiciary transgressed the originalist intent and, in fact, curtailed the scope of representation much below one’s demographic weight. The adoption of originalism, as has been contended, provides the only objective and neutral method of interpreting the Constitution. This approach becomes predominantly relevant given its ability to curb judicial activism, and contextually because the fifty per cent threshold is, in the end, a judicial fiction. In this light, the author argues that interpretative fluidity must not occur at the risk of cauterising provisions of its essential intended function.
While courts have been wary of the Originalist approach recently, in this context, its adoption reveals a fundamental conflict in the judiciary’s reading of Article 16(4). In doing so, the author argues, the judiciary has committed a disservice to Originalism, which it has an occasion to rectify in Gaurav.
B. RETHINKING MERIT AND PROPORTIONALITY IN RESERVATION JURISPRUDENCE
In Gaurav Kumar v. State of Bihar, the Patna High Court opined that a breach of the mandate of Sawhney, amounts to a frustration of merit. It is in this light that the author asserts that this understanding of the Divisional Bench resides in an entrenched vacuum of merit-jurisprudence. The merit argument is emblematic of India’s allegiance to Doraijan, which stems from the conceptual muddling propositioned in Sawhney. This unreasoned attachment runs completely antithetical to the conceptual understanding of substantive equality. The merit argument has, previously been repudiated in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India, where the court defaced the elitist undercurrents of ‘meritocracy.’ Similarly, in B.K Pavitra v. Union of India- II, the court reconceptualised merit as a social construct needing to be recognised as context-specific. It thus rejected its conventional understanding which continues to favour the privileged.
While proportional representation is confined to Articles 330 and 332 of the Constitution, its underlying premise has previously been extended to Article 16 by Justice Mathew in N.M Thomas. It is here, that the author contends that the idea of expanding to proportional representation to 16(4), is not unknown in India’s jurisprudence and can be easily traced to Justice Fazal Ali’s opinion in N.M. Thomas, where he opined that even an overwhelming eighty per cent reservation would be entirely defensible, if the backward classes constituted an eighty per cent of the population., much against the apprehension of the High Court’s opinion. At its core, this impetus of extending proportionality to the idea of Art 16 is merely and quite premised on the inability of political representation to translate to social mobility. This is also validated by the Bihar Caste Census, which provides that around thirty-three, forty, and forty-three per cent of OBCs, Scheduled Castes and Scheduled Tribes suffered from extremely high poverty, respectively. Accordingly, a compelling appeal exists to subject material distribution of resources to, at the very least, being reflective of the community’s population. Another counter-argument emerging from this extension, is that of undermining administrative efficiency under Art. 335, which allows, that the relaxation of such relevant threshold for the purposes of appointment of individuals belonging to the Scheduled Castes and Scheduled Tribes to services in relation to Union or of a state, be subject to administrative efficiency, meaning therefore that such relexation cannot be made to the detriment of efficient governance. This has also been advanced previously by a catena of Supreme Court judgements. The author, in that regard, argues based on two counts. Firstly, that such a concern is addressed and neutralised by a prior Supreme Court ruling, and secondly, that to read Article 16 to the limitation of Article 335 is to attach an erroneous, forceful limitation to Article 16, in light of no established relationship between the two provisions.
Therefore, the Patna High Court, in propounding a ‘merit argument’, reflects a superficial understanding of merit and substantive equality. It is against this backdrop, the Indian Apex Court has an opportunity to rectify, and reconsider its Equality Jurisprudence.
The Supreme Court’s fidelity to the fifty per cent threshold stems from a misinterpretation in Sawhney in its erroneous conflation of formal and substantive equality. The paper seeks to challenge this understanding based primarily on an originalist approach and aims to advocate for the adoption of a proportionality standard under 16(4). In doing so, the paper attempts to advance a more substantive view of equality. Gaurav Kumar, therefore, offers the apex court an opportunity to reconsider and rectify its understanding of equality jurisprudence.
*The author is a third year law student at WBNUJS and takes a keen interest in discrimination law and its myriad intersections including reservation and disability jurisprudence and can be reached at llb223029@nujs.edu
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Categories: Legislation and Government Policy