[Editor’s Note: The Supreme Court’s approach on merit and efficiency of administration in the cases of reservation is not a correct approach conceptually and philosophically, and such an approach leads to deflection from the values of the constitution and compromise the struggle for constitutional justice. The court’s approach is based on the view that reservations and merit are opposed to each other. But there is a need to balance the two.]
In the previous post, the author discussed the lists prepared under Article 341 by Presidential Notification, creamy layer concept and its application to SC/STs (read it here). In this post, the author will discuss the reasons behind inclusion of Affirmative Action/Reservation in the Indian Constitution and the ‘equality of opportunity’ clause in light of the Supreme Court’s judgment in State of Kerala v. NM Thomas. Before the judgment of NM Thomas, the Courts of law had held that Article 16(1) which provides ‘equality of opportunity to all citizens’ is an exception to Article 16(4) which provides for ‘affirmative action by the state in the favour of SC/STs’ (see General Manager, Southern Rly v. Rangachari).
Formal and substantive equality
The first two decades of the Supreme Court’s jurisprudence on reservation adopted a narrow view of equality with respect to reservations as it considered clause 4 of Article 16 an exception to Clause 1. It was not a transformative stance. In the words of Hon’ble Justice Subba Rao who dissented in the judgment of T. Devadasan v. Union of India (1964), if Clause (4) would be an exception to Clause (1) then, “the said rule of equality would remain only a utopian conception unless a practical content was given to it”. Equality in Justice Rao’s knowledge is not only a formal declaration, but it must take into consideration the substantive reality which exists in the society—that is, the evil of group-identity based discrimination.
Under the Constitution of India, the focus point is the individual and his/her rights. But if we look closely to Article 16(1) and 16(4), it talks about ‘group identities’ to which an individual belongs. The same is evident from the words ‘citizens’ in Clause (1) and ‘backward class of citizens’ in Clause (4). Even though the said Clause talks about group identities, still at the heart is the individual who is embedded in an “uneven basic social structure”. That social structure cannot be ignored. Hence, the concept of equality of opportunity shall take into account the social structure and realities. For instance, again in the words of Justice Rao, a race between a racehorse and an ordinary horse would be nothing but ‘a farce of a competition’. Even though the starting line would be the same for both the horses, as per the “formal declaration of equality”, there would not be any real competition. Similarly, “centuries of calculated oppression and habitual submission” faced by Scheduled Castes have “reduced a considerable [them] to a life of serfdom.” Hence, any conception of equality of opportunity under the Indian Constitution must take into account the structural oppression faced by the Scheduled Castes throughout the centuries. This is the aim of Article 16(4) which provides reservations to ‘backward communities’ and the Scheduled Castes and Scheduled Tribes are considered to be ‘backward communities’ by the Constitution makers and there is no debate on that fact. In his dissenting opinion in Devadasan, Justice Rao elucidates the importance of Article 16(4) as a facet of equality in the following words:
“That is why the makers of the Constitution introduced clause (4) in Art. 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the Article.”
This radical shift brought forward by Justice Rao was just a dissent, but it laid the foundation for NM Thomas—which in future will declare this dissent as law of the land. It was a positive move towards the realisation of substantive equality under the ‘Reservation jurisprudence’.
N.M. Thomas Judgment and realisation of Substantive Equality
In the NM Thomas case, the statute in question was the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as ‘Kerala Act’), under which Rule 13A required every employee who is to be promoted in subordinate services to give a test within 2 years of promotion, but it gave SC/STs an extension of 2 more years (in total 4 years). Later, Rule 13AA was added and granted the power to the state government to grant more time to SC/STs to pass the test for promotional posts apart from the initial 4 years, but it didn’t exempt them from giving the test.
The main issue, in this case, was whether the impugned provision (Section 13AA) of the Kerala Act is violative of Article 16(1) and (2). According to the facts, an unreserved category candidate didn’t get selected because of this new rule (made under Rule 13A and 13AA) and he challenged the rule in the High Court of Kerala which declared the Rule as unconstitutional violating Articles 16(1) and 335. Then, the State government appealed. They argued, as Justice Iyer records in paragraph 139, “the need to help Scheduled Castes and Tribes, and acting within the Constitutional bounds, to avert mass reversion to lower posts [after being promoted under Rule 13A]”, without abandoning the requirement of passing ‘tests’. J. Iyer further observes, “The State viewed this disturbing situation with concern, and having regard to their backward condition, made Rule 13AA which conferred power on Government to grant further spells of grace time to get through these tests. Simultaneously, a period within which two opportunities for passing tests would be available was afforded by a G. O. issued under Rule 13AA.” The State highlighted the factual realities. The State neither exempted the employees belonging to SC/ST category from giving the examination nor relaxed the minimum qualification for the posts, but just provided grace to them with respect to time.
Now, the issue which arises here is whether the treatment of Scheduled Castes/Tribes unequally through this service Rules in ‘realist socio-legal’ perspective is constitutionally valid or not. Dr Ambedkar during Constituent Assembly debates had pointed out that we might achieve equality between the citizens politically, but we will fail to achieve economic and social equality if we will not remove contradictions between the people which exists economically (with respect to the economic gap) and socially (elevation for some and degradation for some). This gap between the citizens must vanish and reservation is a tool (and a right – which the Calcutta High Court reiterated in the context of Reservations of transgenders in UGC Examination here (2021)) which helps in achieving that. Positive discrimination in favousr of a socially-distressed class will lead to the promotion of genuine equality before the law as a mere declaration of equality does not work in a socially divided society (even Anthony Lester has argued this in 1970). This article highlights the economic inequality between harijans and non-harijans. There is economic inequality between the citizens, but Dalits face the worst. The social ostracization faced by Dalits all across the country is not because of their economic condition, rather social condition which cannot be remedied by just creating economic equality. Hence, there is a need for socio-economic equality.
To achieve this exposition, the state has an obligation under Article 46 of the Constitution and Article 16 is the tool-kit to achieve that. The explicit mention of SCs and STs in the Constitution, as J. Iyer argues, “makes a super-classification between Harijans and others, grounded on the fundamental disparity in our society and the imperative social urgency of raising the former’s sunken status” (paragraph 153). To illustrate the state’s obligation to “unequally treat” backward classes is not antithetical to Article 16(1) and (2), J. Iyer draws reference from Article 46 and 335 of the Constitution and held that “the Court must wisely read the collective Directive Principles of Part IV into the individual fundamental rights of Part III, neither Part being superior to the other” while relying on the judgment of Kesavananda Bharati. The term ‘caste’ under Article 16(2) is different from the term used under clause 4, i.e., a backward class which constitutes Scheduled Castes and Tribes. Justice Iyer notes this as, “the discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward group deserving of societal compassion.”, while giving an example from the Section 13 (explanation) of the Income Tax Act, 1961.
Is Article 16(4) really an exception to Article 16(1)?
While reading through Article 16(4), the starting words “nothing in this article” astonishes the reader making them believe that Clause 4 is an exception to Clause 1 and 2. Even the Supreme Court believed this till the dissent of Justice Subba Rao in Devadasan. He observed in his dissent (in Paragraph 190), “The expression ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article.” This proposition which was a dissent note before is accepted by the Majority bench in NM Thomas by Justice Iyer who observed that Article 16(4) “serves not as an exception but as an emphatic statement, one mode of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to.” (Paragraph 161)
On the face of it, Clause (4) looks like an exception but on a closer examination it is actually a “constitutionally sanctified classification”. Hence, Article 16 Clauses (1) and (4) are “concordant”, not an exception. Whereas Article 16(1) ensures that equality of opportunity to all citizens “in matters related to employment or appointment to any office under state”, Article 16(4) carves out a mechanism or a tool to ensure that equal opportunity is given to all by ensuring that certain sections of the society, i.e., backward classes, are not left behind in a democratic society. Justice Iyer elucidates this as:
“In a spacious sense, ‘equal opportunity’ for members of a hierarchical society makes sense only if a strategy by which the underprivileged have environmental facilities for developing their full human potential. This consummation is accomplished only when the depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action. To help the lagging social segments, by special care, is a step towards and not against larger and stabler equality.”
On the contrary, there is an argument against this claim that: by giving reservations, the state ensures that casteism kicks in from the backdoor and persists in the society. This is a flawed argument. In the light of this argument and while resting it to bed, Justice Iyer held that, “so, we may readily hold that casteism cannot come back by the backdoor and, except in exceptionally rare cases, no class other than harijans can jump the gauntlet of ‘equal opportunity’ guarantee.” (Paragraph 168)
In conclusion, the reservations do not promote casteism, but it is a tool to cure it. It is a basic necessity to uplift the ‘backward classes’ socially and economically in a socially divided society which breathes casteism. Reservations must be coupled with ground-level education and sensitisation programmes by the state to eradicate the evil of caste from the society.