OBservers of Indian social reality are sometimes at a loss to understand how the Indian Constitution emphasises equality and at the same time provides for reservation in education and employment and in representative bodies. This seeming dichotomy has often been resolved by the judiciary – and when it failed to do so, by Parliament – in favour of substantive equality as originally envisaged by the Constitution-makers. Students of India’s experiment in equality jurisprudence have often found the absence of comprehensive and up-to-date literature on the subject a major constraint in understanding the rationale for continued reservation for the Scheduled Castes, the Scheduled Tribes and the Backward Classes. The need for a comprehensive book on how Parliament, State legislatures, and the judiciary resolved every major challenge to substantive equality was always felt.
Marc Galanter’s Competing Equalities: Law and the Backward Classes in India, no doubt, fills this void to some extent; but it was published in 1984. Since then, jurisprudence on substantive equality has expanded and there have been new controversies such as the one over the implementation of the Mandal Commission report, the exclusion of the creamy layer from among the beneficiaries of reservation, and the introduction of reservation in admission to private educational institutions. Sensing the void, the authors – undergraduate students of NALSAR University of Law, Hyderabad – have put together this remarkable book, keeping the requirements of both the lay person and the student in mind.
At the outset, the authors try to grapple with the logic of reservation, as originally understood by the Constitution-makers. According to them, what originated as a system of division of labour among Brahmins, or the priestly class; Kshatriyas, or the warriors; Vaishyas, or the trading class; and Shudras, or those involved in menial labour, developed over the ages into an evil that has plagued Indian society like none other. One hopes that the authors do not subscribe to the belief that such a division of labour was intrinsically innocent. They rightly suggest that a key task that awaited those who wrote the Constitution was the negation of the divisive societal forces that had grown parasitically on the above classification.
They add that mere negation may not have read as well with the other provisions of the Constitution as those urging measures to counterbalance them. Hence, the framers of the Constitution engaged in efforts to eradicate the effects of past discrimination by providing an effective equality and equalisation code, well supplemented by a mandate for social justice that would ultimately result in a unified society. Thus were born Articles 14 to 17 as part of the fundamental rights. The efforts, as the authors rightly point out, have gained tremendous momentum in their implementation.
But the story of this implementation will be incomplete without discussing the nature of the resistance to it. Article 14 is the general equality provision, interpreted to include the principle of equal treatment of equals and unequal treatment of unequals. In itself, Article 14 must be considered the source of legitimacy for reservation for Dalits and the Backward Classes, who cannot otherwise compete with the advantaged sections of society on equal terms because of historical disabilities. This was the consideration of the Constitution-makers, who did not see the need for Article 15(4) or Article 15(5), which provide for reservation in educational institutions. These clauses were inserted in 1951 and 2006, respectively, through constitutional amendments.
As the authors recall, the Supreme Court, in the case of Champakam Dorairajan, interpreted the absence of a provision such as Article 16(4) (reservation for Backward Classes in public services) in Article 15 (anti-discrimination provision) as placing hurdles in the way of the state’s attempt to provide for reservation in educational institutions. Champakam Dorairajan had successfully challenged, in the Madras High Court, the validity of the communal Government Order issued by the then Madras State fixing a number of seats for particular communities in the engineering and medical colleges of the State. Thus, out of every 14 seats, six were to be allotted to non-Brahmin Hindus, two to Backward Hindus, two to Brahmins, two to “Harijans”, one to an Anglo-Indian or an Indian Christian and one to a Muslim. The petitioner did not actually apply for admission in the medical college, but she stated that on inquiry she came to know that she would not be admitted in the college because she was a Brahmin. The State of Madras appealed against the High Court’s order striking down the G.O. in the Supreme Court. The Supreme Court’s seven-judge Bench upheld the High Court’s order. This led to protests in the State and to an amendment to the Constitution to ensure social justice.
The Interim Parliament thus came up with the First Constitutional Amendment in 1951, introducing Article 15(4), helping to kick-start endeavours at equalisation by the state. The insertion of Article 15(5), through the 93rd Constitutional Amendment in 2006, to make clear provisions for reservation in admissions to private educational institutions (barring minority institutions), was upheld by the Supreme Court in the Ashoka Kumar Thakur case in 2008.
The core of various Supreme Court judgments on reservation is the consistent ruling that caste alone cannot be the criterion for identifying the beneficiaries as it would militate against the principle of anti-discrimination embodied in Article 15(1). The judiciary, therefore, had to invent the concept of the “creamy layer” in order to bring in the economic criterion, along with caste, to justify reservation. The creamy layer principle has been followed since 1993 to exclude economically well-off persons from the ambit of reservation in the public services, following the Supreme Court’s judgment in the Indra Sawhney case.
Another principle consistently followed by the Supreme Court, since its decision in the M.R. Balaji case in 1961, is the maximum limit of 50 per cent for reservation in the public services and in educational institutions. This is because the court believes that reservation upwards of 50 per cent will militate against merit and efficiency, which are equally important constitutional values, and will also result in reverse discrimination with very few seats or vacancies remaining for the non-backward classes. The pros and cons of both these principles have been debated since then and the Supreme Court is still to dispose of some serious challenges to them.
The book examines Articles 14 to 17 in terms of the drafting history, interpretation of the key words in the texts of all their clauses, and the meanings they acquired during their application and as decided by the courts. Readers with a keen interest in understanding these provisions will find the book very useful.
DIFFERENTIAL TREATMENT
Its discussion of the term “discrimination” is more nuanced than what one generally expects. Drawing from diverse case law, the book argues that differential treatment of a class does not amount to discrimination against that class unless there is prejudicial treatment or deprivation of class rights. It is pointed out that discrimination refers to unfavourable/prejudicial treatment of a class of people (which may include a single individual as well) vis-a-vis another class.
Whether there exists a right to reservation is another issue discussed at length in this book. While conceding that Articles 15(4) and 16(4) – enabling reservation for the Backward Classes in educational institutions and in the public services, respectively – are enabling provisions and do not guarantee a fundamental right to reservation, the authors suggest that there exists a positive right to substantive equality guaranteed by Article 14. Even though fundamental rights are generally negative in nature, that is, they do not require any positive actions from the state for their guarantee, there are certain rights that would automatically stand violated by the state’s inaction, they say.
Article 14 postulates that unequals be treated unequally. The state’s inaction would amount to unequals being treated equally. Hence, the authors are convinced that there is a positive obligation on the state to treat the Backward Classes more favourably. The state has the discretion to decide in what manner they should be treated more favourably, and an action exercised in favour of this discretion cannot be questioned on the grounds that it is insufficient. However, failure to exercise this discretion would amount to violation of the right to substantive equality, they suggest.
The book’s discussion of Article 17 – prohibiting the practice of untouchability – could have been more elaborate. The authors rightly note that while the fundamental rights are not enforceable against private individuals, Article 17 is an exception and it makes it mandatory for the state to make sure that private individuals do not practice untouchability. The Protection of Civil Rights Act, 1955, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, were both enacted to give effect to Article 17.
The Supreme Court quashed a challenge to the 1989 Act and upheld its constitutional validity in State of Madhya Pradesh vs. Ram Krishna Balothia in 1995 (3 SCC 221). Earlier, the Rajasthan High Court upheld the Act in the case of Jai Singh vs. Union of India (AIR 1993 Raj 177). The book could have discussed the import of these judgments to throw light on the gap between the objects of the Act and the social reality. The continued practice of untouchability across the country vindicates the need to continue reservation for the S.Cs and the S.Ts beyond the constitutionally stipulated deadlines. The authors may well discuss this aspect in the next edition of the book.
The book includes as annexures nine informative articles by law students on different dimensions of reservation.
