The Transformative Constitution

by Gautam Bhatia

  Justice Mathew began his opinion by identifying the clash at the heart of the case. Everyone agreed that equality entailed treating equals equally and unequals unequally. But what did it mean for people to be ‘equal’ or ‘unequal’: that is, ‘what is to be allowed as a significant difference [between people] such as would justify differential treatment’48 As we have seen, prior Supreme Court decisions and the dissenting judgements in N.M. Thomas had answered this question by drawing a distinction between differences relevant to the State’s goal (in this case, recruiting for public employment) and irrelevant ‘personal characteristics’. As Justice Mathew himself conceded, ‘in distributing the office of a state, not any sort of personal equality is relevant; for, unless we employ criteria appropriate to the sphere in question, it would turn out that a man’s height or complexion could determine his eligibility or suitability for a post … candidates for office should possess those qualities that go to make up an effective use of the office.’49

  But while prior judgements had also limited their understanding of ‘relevant differences’ to this narrow conception, Chief Justice Ray had broadened it to include inadequate representation itself as a relevant difference, as we have seen. As we also saw, however, this was insufficient. It was Justice Mathew who took the idea further. And he began his analysis with a crucial interpretive move:

  The notion of equality of opportunity is a notion that a limited good shall in fact be allocated on the grounds which do not, a priori, exclude any section of those that desire it. All sections of people desire and claim representation in the public service of the country, but the available number of posts are limited and therefore, even though all sections of people might desire to get posts, it is practically impossible to satisfy the desire. The question therefore is: on what basis can any citizen or class of citizens be excluded from his or their fair share of representation?50

  Whereas, until now, the Supreme Court had asked whether a particular mode of recruitment was consistent with the goals of State employment, Justice Mathew turned this on its head, starting with the presumption that everyone was entitled to the public good of State employment. However, given that this public good was scarce, the State would have to devise some method of selecting some people and excluding others. The question then became: on what basis could the State exclude persons, or groups of persons, from their share of representation? Once the question had been framed in that manner, Justice Mathew was able to escape from the conceptual framework that limited equality of opportunity to tracing a rational relationship between the goals of public employment (efficiency, skill, etc.) and the mode of recruitment:

  What, then, is a priori exclusion? It means exclusion on grounds other than those appropriate or rational for the good (posts) in question. The notion requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them.51

  As we can see, the first part of this analysis echoed the old jurisprudence. The second part added an additional requirement, which flowed from Justice Mathew’s starting presumption of a basic entitlement to public goods. To illustrate his argument, he cited an example drawn from the British philosopher Bernard Williams: imagine a warrior society where the position of a soldier carried prestige and power. Up to a point, this was also a slave-owning society, and slaves were barred from becoming soldiers. Imagine that the slaves were then emancipated, and the formal bar removed. However, because they had been kept systematically weak and malnourished during their period of slavery, they were unable to pass the physical tests that were required to qualify as a soldier. Bernard Williams argued that the ostensibly neutral physical tests did not, in any genuine way, further the principle of equality.52 Invoking this example, Justice Mathew then observed:

  What one is doing there is to apply the same criteria to X as affected by favourable conditions and to Y as affected by unfavourable but curable conditions. Here there is a necessary pressure to equal up the conditions. To give X and Y equality of opportunity involves regarding their conditions, where curable, as themselves part of what is done to X and Y and not part of X and Y themselves. Their identity for this purpose does not include their curable environment, which is itself unequal and a contributor of inequality.53

  This paragraph was at the heart of Justice Mathew’s transformative vision of equality, a vision that involved a fundamental shift from viewing ‘personal characteristics’ as part of who you are to viewing them as part of a humanly constructed environment that can facilitate or hinder your access to basic public goods. A person’s membership of a Scheduled Tribe, for example, was to be understood not as a mark of personal identity (and which, therefore, could not be privileged under the doctrine of equality), but as a socially constructed fact that severely limited her access to opportunities.54

  While Justice Mathew’s opinion laid out the philosophical foundations of the new vision of equality, it remained incomplete. At the beginning of his judgement, he noted that ‘[Equality] is a symbol of man’s revolt against chance, fortuitous disparity, unjust power, and crystallized privileges’.55 But as a constitutional proposition, this is both too vague and too broad. Does Article 16(1) actually aim to compensate people for bad luck or ‘fortuitous disparity’? Perhaps not. Later, Justice Mathew went on to note that what Article 16(1) required was ‘equality of results’, because ‘formal equality of opportunity simply enables people with mere education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair’.56 If, however, Article 16(1) was designed to compensate even for differences in ‘intelligence’, then it’s difficult to see what, if any, differences couldn’t be invoked to compensate for. As we had discussed earlier in this section, such a totalizing approach to Article 16(1) would make it more or less unworkable. Justice Mathew’s opinion, therefore, failed to answer the question that he himself posed: what differences between persons were to be treated as relevant for the purposes of compensatory treatment under Article 16(1)?

  Justice Krishna Iyer answered that question in his concurrence. Drawing upon the history of India’s hierarchical society, the Directive Principles of State Policy, and the Constitution’s commitment to the ‘untouchable’ community in several of its Articles, he noted that:

  … ‘equal opportunity’ for members of a hierarchical society makes sense only [through] a strategy by which the underprivileged have environmental facilities for developing their full human potential … the distinction would seem to be between handicaps imposed accidentally by nature and those resulting from societal arrangements such as caste structures and group suppression. Society being, in a broad sense, responsible for these latter conditions, it also has the duty to regard them as relevant differences among men and to compensate for them whenever they operate to prevent equal access to basic, minimal advantages enjoyed by other citizens.57

  Here was a workable definition of the ‘relevant differences’ between people and classes of people. The kind of differences that the doctrine of equality is meant to take into account, and compensate for, are those imposed by social and institutional structures (over time), and which have the effect of denying people ‘equal access’ to basic goods.

  Of course, this is by no means a perfect definition. The difference between disadvantages that society is ‘responsible’ for and those that are imposed ‘accidentally by nature’ is often blurred and unclear.58 Consider, for example, an illness that is curable but the government’s budgetary priorities preclude it from providing affordable access to the medicine. Is ‘society’ responsible, or is ‘nature’?59 This same problem, of course, lies in Justice Mathew’s alternative approach, which focused on the word ‘curable’. Between the incurability of death and the curability of caste-based social boycotts, there is a
vast, uncertain spectrum where it is unclear where society’s ‘responsibility’ begins and where it ends. But while the specific content of the nature/society distinction remains to be critically scrutinized, it is at least clear that Justice Krishna Iyer provided us with a plausible answer to the question that Justice Mathew posed: what distinctions between persons count as ‘relevant’ for the purposes of equality of opportunity?

  We are now in a position to appreciate the transformative constitutional vision of equality based on a combined reading of the concurring opinions of Justices Mathew and Krishna Iyer in N.M. Thomas. According to this vision, every individual had an equal right to access basic public goods and resources, including State employment. In cases where these goods were scarce, the State would have to devise a procedure of selection, of exclusion and inclusion. Any State process would have to take into account both internal rationality (efficiency and merit) as well as external circumstances, such as historical and present-day social and institutional discrimination. Equality meant taking into account, and compensating for, historical and social circumstances that impeded an individual’s access to the basic public goods important to sustain a dignified life.60 As we have seen in a number of different ways, this more substantive vision of equality departed from what had come before.

  III. N.M. Thomas as a Transformative Decision—

  A : Equality of Opportunity

  In N.M. Thomas, a majority of the Supreme Court held that Article 16(4) was not an exception to Article 16(1) but a facet of it.61 However, the ‘reading in’ of Article 16(4), with its specific commitment to ‘classes’, into Article 16(1), which guaranteed equality of opportunity to all ‘citizens’, raised some further interpretive problems. In particular, it meant that there were two distinct ways in which the new Article 16(1)/(4) combination could be understood. Under the first interpretation—call it the ‘group subordination principle’62—the point of the special measures authorized by 16(4) is to achieve equality between groups.63 In other words, the site of constitutional action is the group, and the right (to equality) that is being vindicated is that of the group’s. The justification for this approach is that, historically, injustice has been meted out to certain groups (women, Dalits, etc.), and thus it makes sense for remedial action to be focused on them.

  The second interpretation is also sensitive to the realities of historical discrimination, but even so it insists that ultimately the right to equality is an individual right. However, because historically the individual has been discriminated against in virtue of her membership of a particular group (e.g., as a woman, or as a Dalit), it might be necessary to take group identity into account in order to achieve genuine equality.64 Notice that both these approaches support reservations, based on a historical understanding of the way in which discrimination has worked in our society, but for radically different reasons. The first, i.e., group-subordination approach, is geared towards preserving group identities by equalizing groups qua groups. The second approach aims at eventual elimination of group identity, accepting group-based classifications as a necessary set of evils on the road to a society in which all individuals are brought to a position of genuine equality.65

  In N.M. Thomas, the majority opinions did not address this issue in detail, although Justices Mathew and Krishna Iyer did nail their colours to the individual-right mast. The former began his opinion by noting that equality of opportunity was an individual right,66 while Justice Krishna Iyer clarified that the ultimate purpose of reservations was to break down and eradicate caste groups (instead of preserving and equalizing them).67 But neither Justice provided any further reasons justifying this interpretation of the Equality Code.68

  A preliminary justification, of course, is located in the text of Article 16(1), which guarantees the equality of opportunity to all ‘citizens’ (not to all ‘classes of citizens’). This also yields the important point that, by holding that Article 16(4) was a facet of Article 16(1), Justices Mathew and Krishna Iyer were making it clear that even the reservation provisions were, ultimately, about vindicating individual rights, even though the rights holders were defined in the language of ‘backward classes.’

  I will suggest, however, a deeper justification lies in constitutional history that speaks both to the argument that the right under Article 16(1) remains vested in the individual, and to the argument that under the Equality Code, Article 16(4) is a facet of Article 16(1). This is because the Constitution’s Equality Code was a recognition of a long social history in which individuals had been singled out for discrimination and disadvantage because of their group identity (primarily caste): a social structure that, in the words of Marc Galanter, was built upon a ‘complex pattern of exclusion, separation, and restricted use’.69 Importantly, this was a social structure that existed parallel to, and often in complicity with, the colonial legal regime, which was supposedly based on principles of formal equality. For example, Eleanor Zelliot highlights an instance as early as 1856, where a Bombay school’s refusal of admission to a Mahar student was upheld by the education department on the basis that it would not be right to ‘force’ caste-students into association with the Mahar, and thus ‘mak[e] the institution practically useless to the great mass of natives’.70 This was not a one-off situation. Schools segregated based on caste, and even segregated classrooms within integrated schools, were a reality for much of the late-nineteenth and early-twentieth centuries under an ostensibly equal formal public schooling system.71

  School segregation is but one instance of a broader social structure in which a series of interdicts and prohibitions, both formal and informal, explicit and implicit, served to effectively deny certain groups access to basic public goods, whether roads and wells, or educational institutions. Ameliorative efforts proceeded on precisely this understanding. In 1931, the Census Commissioner, J.H. Hutton, proposed nine tests for determining ‘untouchable groups’ (subsequently ‘Scheduled Castes’ in the Constitution), most of which revolved around questions of disabilities and access (ability to use public conveniences, ability to access the services of barbers, water carriers, etc., access to temples, and so on).72 With a few differences, this method was replicated by the 1932 Franchise Committee.73

  The political thought of the rising nationalist movement reflected a similar understanding. For instance, following a nearly identically worded resolution passed in a Depressed Classes meeting at Bombay, the Indian National Congress in 1917 accepted the necessity of ‘removing all disabilities imposed by custom upon the Depressed Classes’.74 The 1928 Nehru Report provided, as a fundamental right, that ‘no person shall by reason of his religion, caste or creed be prejudiced in any way in regard to public employment, office or power or honour and the exercise of any trade or calling’.75

  This principle was then refined in the 1931 Karachi Resolution, the proto-Bill of Rights whose importance we have discussed in the previous chapter. The 1931 resolution’s non-discrimination principle stipulated that ‘no disability attaches to any citizen by reason of his or her religion, caste, creed or sex, in regard to public employment, office of power or honour, and in the exercise of any trade or calling’.76 The use of the phrase ‘no disability attaches’ (instead of ‘the State shall not discriminate’) demonstrates an understanding of how the denial of equality of opportunity was primarily the result of entrenched social sanctions rather than any specific act of exclusion by the State.

  More importantly, however, the succeeding phrase—‘to any citizen by reason of his or her …’—anticipated Justices Mathew and Krishna Iyer’s formulation in N.M. Thomas: the task of equality was to ensure that one’s group membership did not become a reason for disability or exclusion. The 1928 Nehru Report used the phrase ‘no person’, and the 1931 Karachi Report used the phrase ‘any citizen’. Consequently, the right remained individual (whether belonging to a person or to a citizen), while group membership was a salient factor in ensuring that the individual right could be genuinely and effectively exercis
ed. The idea, in other words, was to achieve individual equality through the means of ‘a national commitment to reduce invidious distinctions among groups, coupled with a conviction that it was permissible and perhaps necessary to employ these discredited caste notions to effectuate … equalizing policies …’77

  This understanding is visible in the Constituent Assembly’s Fundamental Rights Sub-Committee’s first draft bill of rights. This first draft did not have anything resembling what eventually became Article 16(4). What it did have, as part of its equality clause, was the following:

  Any enactment, regulation, judgement, order, custom or interpretation of law, in force immediately before the commencement of this Constitution, by which any penalty, disadvantage or disability is imposed upon or any discrimination is made against any citizen on any of the grounds aforesaid (i.e., religion, race, caste, language or sex) shall cease to have effect.78

  As in the earlier proto-constitutional drafts, the use of the broad words ‘disadvantage’ or ‘disability’ demonstrated a sensitivity to barriers that went beyond formal prohibitions (which were covered by the word ‘penalty’); and the use of the word ‘custom’ signified ‘disadvantages’ and ‘disabilities’ whose origins were social and structural. Most importantly, once again, the fulcrum of the clause was the citizen. It was the (individual) citizen who, by virtue of her group identities, was subjected to disadvantages and disabilities, and it was the (individual) citizen whom the new Constitution was meant to emancipate through its commitment to equality.