Under the colonial regime, which unapologetically viewed Indian society as an agglomeration of communities,9 distributing benefits on a group-wise basis was quite normal. After all, the centrepiece of colonial legal policy was the existence of separate, communal electorates, on the grounds that the interests of different communities could be represented only by members of those communities. However, with the passage of the Constitution, which decisively rejected communal electorates in favour of universal adult individual suffrage, and guaranteed to all citizens a right against discrimination and a right to equality of opportunity, could the regime of ‘communal quotas’ continue?10
When the Supreme Court was first asked that question, it responded with a decisive ‘No’. The State of Madras had a pre-constitutional reservation policy for admission to medical institutions, which allocated seats among ‘non-Brahmin Hindus’, ‘Backward Hindus’, ‘Brahmins’, ‘Harijans’, ‘Anglo-Indians’, and ‘Muslims’, on a quota basis. Soon after the Constitution came into force, this policy was challenged by Champakam Dorairajan, an aspiring Brahmin medical student, who argued that the government’s reservation policy violated her right to non-discrimination under Article 15(1), and her right to non-discriminatory access to State educational institutions under Article 29(2)11 (Article 15[4] did not exist at the time). In State of Madras v. Champakam Dorairajan,12 the Supreme Court agreed, holding that ‘the right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens’.13 A policy that made admission conditional upon class membership, therefore, was unconstitutional.
The State argued that, under Article 46 of the Constitution, which was part of the Directive Principles, it was mandated to ‘promote … with special care the educational and economic interests of the weaker sections of the people …’14 The Constitution itself, therefore, envisaged policies aimed at sections, or groups, that had suffered, and continued to suffer, from various disadvantages. The Court swiftly rejected this argument, observing that ‘the directive principles of the State policy, which … are expressly made unenforceable by a court, cannot override the provisions found in Part III’.15
Champakam Dorairajan was both the first and the clearest exposition of a constitutional philosophy of equality that I shall call ‘caste-blind’. These were the building blocks of the philosophy: first, that the rights under Article 15(1), 16(1), and 29(2) were individual rights; second, that Article 46’s mandate to uplift weaker sections, framed in the language of groups and group rights, was merely a political exhortation to the government; and third, that group-based policies were constitutional only if they came within a specific, enabling provision, like Article 16(4), which was a group-oriented exception to the constitutional principle of individual equality. However, in a circumstance where Article 16(4) was not applicable, and where (as the Court concluded its judgement by noting) ‘the classification proceeds on the basis of religion, race and caste … [it is] opposed to the Constitution and constitutes a clear violation of the fundamental right guaranteed to citizens under Article 29(2)’.16 In short, the Constitution was caste-blind because it required that, except where specifically provided otherwise,‘… government must treat citizens as individuals and not as members of racial, ethnic, or religious groups’.17
Even as the Supreme Court was deciding Champakam Dorairajan, the Parliament was moving to amend the Constitution. Through the First Amendment, Article 15(4) was inserted, stipulating that:
Nothing in this Article … shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
The First Amendment reinforced the vision of a caste-blind Constitution. If Parliament had to amend the Constitution and add a fresh article whenever it wanted to make a provision for groups, then it made sense to view these fresh provisions as departures from, or exceptions to, the idea of caste-blind, individual-focused equality, as expressed by Articles 14, 15(1), 16(1), and 16(2).18
The Supreme Court doubled down on caste-blind equality after Dorairajan. In General Manager, Southern Railway v. Rangachari,19 it held that Article 16(4) covered only ‘reservation of appointments or posts’. Consequently, in those aspects of public employment that did not fall within this phrase—‘such as salary, increment, gratuity, pension and the age of superannuation’20—there could be no reservation, because ‘these matters … do not form the subject-matter of Art. 16(4)’.21 In other words, as Rangachari made starkly clear, ‘equality of opportunity’ and ‘reservation’ were antithetical concepts. The latter existed only because, and to the extent that, Article 16(4) allowed for it.
There were, furthermore, two important corollaries to this principle, which were evolved by the Supreme Court soon after. First, in M.R. Balaji v. State of Mysore,22 the Court capped reservations at a maximum of 50 per cent, on the grounds that the exceptions (Articles 15[4] and 16[4]) could not ‘swallow up’ the rule (of equality and non-discrimination).23 This was reaffirmed soon after in T. Devadasan v. Union of India,24 where the Court prohibited the State from ‘carrying forward’ unfulfilled reserved vacancies into succeeding recruitment years. And secondly, if the legitimacy of reservations was solely due to Articles 15(4) and 16(4), then no person could claim them as a matter of right.25
This puzzle, however, misses one last piece. Any method for selection of individuals—whether for educational admissions or government recruitment—would have to follow some kind of classification.26 An admission test, for example, would use marks as the basis for decision, separating applicants into two ‘classes’: those who cleared the cut-off and those who didn’t. This takes us back to the Supreme Court’s well-worn aphorism that the Constitution’s Equality Code permits ‘reasonable classification’ but not ‘class legislation’. But what is the difference between these two terms? Or, to frame the question another way, what kinds of ‘classes’ fall within the prohibition of ‘class legislation’?
Early on, the Court answered the question by referring back to the classic two-pronged test under Article 14 of the Constitution, which guaranteed the ‘equal protection of laws’: a ‘classification’ would be reasonable if there was an intelligible differentia between the two classes, and if it bore a rational nexus with a State goal.27 However, while this answer might suffice for an Article 14 challenge, it would not be enough under Article 16(1). The State might simply argue that its goal was just to increase representation of ‘backward classes’ in State employment. Then, class-based reservations would have a rational nexus with this goal, and the tests of Article 14 would be met. The Court got around this problem by ascribing a set of normative commitments to the term ‘equality of opportunity’. The very concept of individual equality of opportunity, held the Court, ruled out goals such as levelling class-based representation. The only goals the State could legitimately base its recruitment or admissions policies on were goals internal to the institution in question, related only to the ‘demands and needs of the office’;28 for example, increasing efficiency29 or selecting the best candidates.30 An admission test met this criterion; reservations did not.
What links the vision of the caste-blind Constitution with this understanding of equality of opportunity is a philosophical individualism that distinguishes between an individual’s ‘personal characteristics’31 (her religion, caste, gender, socio-economic class, and so on) and her ‘personal qualities’ (merit).32 Classification on the basis of the former (such as a reservation scheme) is presumptively illegitimate and antithetical to equal treatment, both because personal characteristics are not within the individual’s control, and because they should be morally irrelevant to determining individual worth.33 For the opposite reasons, classification schemes that take into account personal merit and qualities are consistent with the principle of equal treatment and equality of opport
unity.34 Although the Supreme Court never articulated this philosophical commitment that underlay its early Article 16 jurisprudence, as I have argued, it is this vision that explains both its focus on a caste-blind Constitution as well as its distinction between merit- or efficiency-oriented selection procedures on the one hand and group-oriented reservations on the other.
II. State of Kerala v. N.M. Thomas
However, even amidst this near-uniform consensus, there was a note of disagreement. In T. Devadasan, the question was whether the State could ‘carry forward’ unfilled reserved vacancies into the succeeding recruitment year. To put it in concrete terms: suppose the State reserved 30 per cent of seats, but in year X only 20 per cent were actually filled up by reserved category candidates, could the State ‘carry forward’ the remaining 10 per cent into the succeeding year, and reserve 40 per cent of the seats in order to bring the total representation of reserved category candidates back to 30 per cent? Following the Balaji rule of capping reservations at 50 per cent, a majority of the Court rejected the ‘carry-forward principle’.35
Justice Subba Rao dissented. His dissent, however, was not limited to reservation caps, but presented a serious challenge to the entire philosophical structure that the Court had erected over its first decade. After surveying the constitutional provisions, he observed:
If [Article 16(1)] stood alone all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an [sic] utopian conception unless a practical content was given to it.36
The crucial philosophical shift initiated by Justice Subba Rao was this: in his view, ascriptive group markers such as class were not to be understood as ‘personal characteristics’ alone, but as personal characteristics embedded within an ‘uneven basic social structure’. The concept of equality of opportunity had to take into account how these personal characteristics interacted with social structure. To illustrate the point, Justice Subba Rao took the example of a race between a racehorse and an ordinary horse, noting that if they both started together, it would only be a ‘farce of a competition’.37 A handicap was necessary to ensure ‘real competition’ and, by extension, genuine equality of opportunity. Transposing the example into Article 16(1), he went on to note:
Centuries of calculate [sic] oppression and habitual submission reduced a considerable section of our community to a life of serfdom.38
This took the argument one step further, locating the different conditions of sections of the community to ‘calculated oppression’ and ‘habitual submission’. In other words, the racehorse was not a racehorse by nature but as the result of many generations of conscious breeding and a lifetime of painstaking care—advantages not available to the ordinary horse. By attributing the condition of the ‘backward classes’ to a history of structured and institutional oppression, Justice Subba Rao was laying the ground for the moral and constitutional argument that would follow: that any meaningful conception of equality and equality of opportunity must necessarily take this history into account:
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.39
The shift was complete: Article 16(4) was no more an exception to Article 16(1) but an ‘emphatic’ expression of the same intention. Articles 14, 15, and 16 constituted a comprehensive Equality Code whose philosophy was to take into account, and surmount, inequalities generated by social and institutional structures over time. Where the site of such inequalities mapped onto class, equality could be served only by fashioning policies that identified persons on the basis of class membership, and then allocated benefits and burdens accordingly. Readers will note that it was strikingly similar to the justification offered by Shahuji Maharaja when he introduced the concept of reservations into the Indian polity for the first time.
It was twelve years later, in N.M. Thomas, that Justice Subba Rao’s proto-formulation of this more substantive conception of equality was given a rich and detailed articulation. In N.M. Thomas, a governmental order granted provisional promotions to members of Scheduled Castes (SCs) and Scheduled Tribes (STs) who did not have the requisite qualifications to be eligible for such promotion, along with a two-year grace period for them to gain such qualifications. This was challenged. The key contention of the aggrieved parties was that the classification was clearly void under Articles 16(1) and (2), and not covered by Article 16(4). Under existing precedent, this ought to have been a simple case. If Article 16(4) did not apply, then special provisions for SCs and STs clearly violated Articles 16(1) and (2).
Not so, said a divided Court, splitting 5–2. In paragraph 31, Chief Justice Ray, writing the majority opinion, began with the basics:
… the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances.40
As we have seen, until now, using characteristics external to the context of employment, viz., an absence of representation of certain classes, had been held not to be reasonable. Chief Justice Ray, however, turned this on its head:
… equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration.41
Consequently, following Justice Subba Rao, Chief Justice Ray propounded the view that Article 16(4) was not an exception to Article 16(1) but existed as ‘one of the methods of achieving equality embodied in Article 16(1)’.42
Standing by itself, however, this is not enough. Taken on its own, the phrase ‘unrepresented classes’ used by Chief Justice Ray is much too broad. For example, it cannot be that the children of ministers have an enforceable right to government employment, in case at any time, as a class, they were ‘unrepresented’.43 Examples can be multiplied, but the crucial point is to understand that what matters is not simply class-based representation but a method for ascertaining the circumstances in which representation (or the lack thereof) becomes salient for the principle of equality of opportunity.
The issue was sharpened in Justice Khanna’s dissenting opinion, where he put the point simply: preferential treatment, by definition, was a negation of equality.44 Of course, the word ‘preferential’ is a fraught one. As we discussed above, in a slightly different context, every admission or recruitment test that makes use of general standards is ‘preferential’. A written exam, for example, ‘prefers’ people with better test-taking skills, a better command over language, a better knowledge of the subject, and so on. Well aware of this, Justice Khanna went on to clarify: ‘reasonable classification’, he argued, allowed you to take into account only those factors that were required for ensuring effective employment; or, in other words, factors other than personal characteristics.45 That is, the kind of ‘preference’ implicit in written, subject-oriented tests was permitted under equality of opportunity, but ‘preference’ in terms of ‘personal characteristics’ was not.
This argument was buttressed by Justice Beg in a partially concurring and partially dissenting opinion, where he noted that Article 16(4), in allowing reservations, departed from the ‘principle of absolute equality of opportunity in the application of uniform tests of competence’.46 The phrase ‘uniform tests of competence’—which Justice Beg tacked onto the definition under Article 16(1)—is an important one, and requires some unpacking.
The word ‘uniform’, like the word ‘preferential’, is not self-explanatory. There is nothing inherently more ‘uniform’ about a recruitment test than there is about a reservation quota. What makes a ‘test of competence’ seem ‘uniform’, however, is that it doesn’t take into account personal characteristics, i.e., it treats individuals as unencumbered selves, detached from the features that mark them o
ut as members of groups (‘impersonal’).47 In other words, you take people as you find them: if an individual fails a ‘uniform test of competence’, it is not because of something about them (a personal characteristic such as sex or religion or class), but because of something they were unable to do (score high enough).
This goes back to a point made above. Reservations seem antithetical to the principle of equality of opportunity because they allocate benefits and burdens on the basis of that which individuals cannot control (their membership of a group). An entrance test, however, is the opposite of that—it depends entirely on factors within the individual’s control (or so the argument goes). Consequently, at the heart of the clash between Chief Justice Ray on the one hand and Justices Khanna and Beg on the other was a conflict over the relationship between principles of equality and personal (or group-oriented) characteristics, within the framework of a Constitution that, ostensibly, was committed to the individual. And it was this clash that set the stage for the concurring opinions of Justices Mathew and Krishna Iyer, which advanced a new and transformative vision of equality.
The Transformative Constitution Page 12