Interestingly, in a subsequent version of the draft, this provision disappeared. What did come in was a proto-version of Article 16(4): ‘Nothing herein contained shall prevent the State from making provision for reservations in favour of classes who, in the opinion of the State, are not adequately represented in the public services.’79 Although this was not a direct substitution, the new provision was effectively doing the work of the old one, but in a clearer, more explicit fashion. Instead of the ambiguous prohibition of ‘disabilities’, there was now a mandate for affirmative action.
When the Constituent Assembly debated the clause, first in April 1947 and then during the reading of the draft Constitution in November 1948, there was little argument over the necessity for having it in the Constitution, and no discussion about its underlying philosophy. The debate centred primarily around the addition of the word ‘backward’ before ‘classes’, which was added by the Drafting Committee between the 1947 and the 1948 debates. Critics of the provision attacked it as being vague and indefinable. It was in his speech responding to these criticisms that B.R. Ambedkar offered some insight into the principles that grounded the clause. Noting that there existed ‘three points of view’ in the Assembly, which had to be ‘reconciled’, he observed that:
… the view of those who believe and hold that there shall be equality of opportunity has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now – for historical reasons – been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services.80
Three aspects of this speech are important. The first is Ambedkar’s insistence that Draft Article 10(1)—which would eventually become 16(1)—was only a ‘generic principle’. By implication, therefore, the phrase ‘equality of opportunity’ did not, by itself, connote any concrete content. The second was his deliberate use of the word ‘opportunity’ to characterize the claims of the ‘backward classes’ as well. And the third was his characterization of the Draft Article as a ‘reconciliation’ between formal equality of opportunity and equitable representation. This reconciliation, Ambedkar went on to argue, was achieved by the addition of the word ‘backward’ before ‘classes’. This would prevent a constitutional requirement to accede to all claims of prior insufficient representation, an eventuality that could ‘destroy’ the principle of equality of opportunity.
To substantiate his point, Ambedkar then took the example of a situation where 70 per cent of government posts were reserved, and stated that this would not be ‘satisfactory from the point of view of … equality of opportunity’.81 Such a situation, he argued, would be prevented by the addition of the word ‘backward’. However, if Ambedkar’s concern was purely numerical, then it would surely have been far easier to place a cap on reservations within the Article itself (as the Supreme Court did in M.R. Balaji). The use of the word ‘backward’ suggests not a quantitative constraint upon reservations but a qualitative one. It suggests a normative basis for distinguishing between claims of representation that could be constitutionally sustained and those that could not. And it is that normative basis that would constitute the moral foundation of the Constitution’s Equality Code.
It is here that the link between ‘social disabilities’—the pre-constitutional understanding—and ‘backwardness’ becomes salient. The phrase ‘backward class’ had a long pre-constitutional history, starting, as we have seen, with the princely state of Kolhapur, after which it was taken up by other provincial governments. It was also used in numerous colonial documents, such as the Starte Committee82 and the Franchise Commission. As Galanter observes, it had no fixed meaning. Its use had changed and varied widely according to local contexts, ranging from being synonymous with the untouchable classes, to being applied to classes that did not suffer from the stigma of untouchability but were nonetheless, in the view of the State, in need of ‘special treatment’.83 It had never been clarified, however, what precisely was the principled justification for ‘special treatment’, and Ambedkar’s own defence of the provision in the Constituent Assembly effectively left the matter to the discretion of local governments.
That, however, is not the whole story. As Chandrika Ram pointed out during the Constituent Assembly debate on 30 November 1948, the phrase ‘backward classes’ had been defined in the census reports of 1921 and 1931,84 where the criteria of ‘backwardness’, we have seen above, had been group-based, socially imposed disabilities of access. And, as we have also seen, preparatory drafts of the Advisory Committee specifically sought to overcome individual ‘disability’ and ‘disadvantage’ experienced ‘by reason’ of group membership, as part of a broader, substantive vision of equality.
We have, therefore, an incipient and incomplete link between the pre-constitutional groping towards equality, the drafts and debates in the Constituent Assembly, and the final text of what became Article 16: a ‘reconciliation’, as Ambedkar put it, between the claims of formal equality of opportunity on the one hand and equitable representation on the other. This reconciliation was achieved through a more nuanced vision of individual equality that contained within it the mandate to overcome disadvantages and disabilities that had an enduring societal, institutional, and structural character.85 It was this vision that, as we have seen, first motivated Shahuji Maharaj in 1902. And it was this vision that was completed by the majority in N.M. Thomas, and articulated most clearly in the concurring opinions of Justices Mathew and Krishna Iyer.86
IV. N.M. Thomas as a Transformative Decision—
B: Directive Principles of State Policy
The historical arguments outlined above are indicative, but certainly not conclusive. The genealogy of the term ‘backward class’ was inconclusive, making it unclear what exactly was the normative basis of determining who was entitled to reservation under Article 16(4). After all, in the course of the same speech, Ambedkar referred both to ‘reconciling’ equality of opportunity and claims of representation as well as ensuring that the ‘exception’ (of reservations) did not swallow up the ‘rule’ (of equality of opportunity)—which, of course, was precisely how the pre-Thomas court understood the constitutional scheme.87 The distinction is important: the rule-exception language suggests that Articles 16(1) and 16(4) contain opposed principles, and the judicial task is to balance (or ‘reconcile’) them by marking out their respective, separate domains. The N.M. Thomas understanding, however, is that the ‘reconciliation’ is achieved in Article 16(1) itself, through a vision of individual equality that is sensitive to group disadvantage, and that 16(4) is only a concrete restatement of this reconciliation.88
While some of the speakers in the Constituent Assembly adhered to the second understanding, specifically arguing that Article 16(4) was meant to provide ‘equality of opportunity’ in its genuine sense to members of backward classes,89 other speakers categorically viewed it as a departure from the principles underlying the Equality Code, including Article 16(1).90 Ambedkar’s own ambivalence supports the idea that in the Constituent Assembly there was perhaps no genuine consensus about the nature of the relationship between Articles 16(1) and 16(4).
The text of Article 16(1) itself, as we have seen, is open to both interpretations. Consequently, with an ambiguous text and an inconclusive history, Justices Mathew and Krishna Iyer had to turn elsewhere to substantiate their reading of the Equality Code. They did so by looking beyond Article 16, beyond the Fundamental Rights chapter itself, and to another part of the Constitution—the Directive Principles of State Policy (Chapter IV). The opening clause of the DPSPs states:
The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws
.91
Recall that Article 46 of the Constitution, part of the DPSPs, commits the State to promote the interests of the ‘weaker sections’ of the people. In Champakam Dorairajan, the State had invoked this Article to defend its communal quotas. The Supreme Court had rejected this defence, holding that, because they were expressly unenforceable, DPSPs could have no role to play in the constitutional enquiry. In N.M. Thomas, however, Justice Mathew observed that:
… if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational, and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court …92
Justice Krishna Iyer put the point more pithily:
… Article 46 has to be given emphatic expression while interpreting Article 16(1) and (2).93
Therefore, Justices Mathew and Krishna Iyer held that Article 46, as a directive principle, was meant to inform the decision about which conception of equality of opportunity the Constitution was committed to. Article 46—with its mandate to the government to promote the interests of ‘weaker sections’ and to protect them from ‘exploitation’—was to be ‘read into’ Article 16(1)’s guarantee of equality of opportunity and give it enforceable content. In other words, the DPSPs were to be treated as framework values, which would play a role in helping the Court to clothe the abstract principles of Part III (the Fundamental Rights chapter) with the flesh and blood of concrete constitutional commitments.
In making this claim, Justices Mathew and Krishna Iyer were joining issue in a long and contested battle about the precise constitutional relationship between fundamental rights and directive principles. The battle had raged in the Constituent Assembly, where one set of members failed to see the purpose of including within the Constitution a set of unenforceable principles, little more than ‘pious wishes’, and called for the entire Chapter to be scrapped. Other sets wanted some or all of the directive principles to be made enforceable fundamental rights. Against both camps, Ambedkar argued for the validity of a set of principles that, for various reasons, could not be judicially enforced, but were nonetheless ‘binding’94 and were intended to be ‘the basis of all executive and legislative action’.95
The early Supreme Court, supported by H.M. Seervai,96 took the position that ‘unenforceability’ meant ‘legal irrelevance’, and that Part IV could play no role in constitutional interpretation. By the end of the 1950s, however, the Court came around to the view that fundamental rights and directive principles had to be construed ‘harmoniously’. This could mean invoking Part IV to hold that a law was a ‘reasonable restriction’ upon a fundamental right, or interpreting ambiguous statutes in a manner that advanced the goals of Part IV. Neither of those views, however, was entirely satisfactory or developed with any rigour. It was in N.M. Thomas that, for the first time, the Court understood the ‘harmonious relationship’ between Parts III and IV in the fashion outlined above: that Part IV expressed a system of political, social, and economic values that gave concrete shape to abstract fundamental rights and helped the Court to determine which of the many possible concrete interpretations of those rights to select in any given case (in N.M. Thomas, it was the right to equality).97
I have argued elsewhere that in doing so, the Supreme Court was correct, for many reasons. The use of the word ‘enforceable’ in Article 37 was deliberate (it replaced the word ‘cognizable’ from an earlier draft), and was meant only to prevent courts from striking down laws on the basis that they did not comply with the DPSPs. The framers did not, at any point, plan to make Part IV a vestigial organ of the Constitution. In fact, the use of the DPSPs as framework values was consistent with an important current of Indian political thought that came to fruition in the late 1930s and 1940s, in the build-up to the drafting of the Constitution: that the civil and political rights (which would be guaranteed by Part III of the Constitution) could not be meaningfully enjoyed without the concomitant provision of socio-economic rights (found in what finally became the Directive Principles chapter).98
Ambedkar himself, in a 1947 memorandum, pointed out the meaninglessness of civil and political rights to the unemployed, starving, and economically powerless.99 There was, therefore, intellectual support for the proposition that, even if socio-economic rights could not be made directly enforceable, ‘meaningful civil and political rights could not exist without being conceptualized in a way that took into account socio-economic considerations’.100 This position was further endorsed by Ambedkar in the Constituent Assembly, where he argued that the Constitution was committed to the principle of ‘economic democracy’ as a complement to ‘political democracy’).101 And this, of course, was exactly the position taken by Justices Mathew and Krishna Iyer in N.M. Thomas, as evidenced, in particular, by this paragraph:
… if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational, and economic environment.102
Or, as the Supreme Court would observe a few years later:
[The framers] had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology while drafting the fundamental rights …103
N.M. Thomas, therefore, was transformative in two senses. It was transformative in replacing the caste-blind vision of equality with a richer, more substantive vision. This vision retained the focus upon the individual, but also postulated the goal of equality as overcoming structural and institutional barriers that prevented individuals from accessing basic public goods because of their membership of certain groups. And it was transformative in articulating a new relationship between Parts III and IV of the Constitution: the socio-economic commitments of the directive principles were meant to serve as framework values for interpreting fundamental rights, especially where fundamental rights, couched in abstract principles, were susceptible to more than one interpretation.104
V. Conclusions: Problems and Prospects
To briefly recapitulate, the transformative vision of equality advanced by the Supreme Court in N.M. Thomas has three salient features. First, the rights to equality, and to equality of opportunity, are individual rights. Second, that these are substantive rights, designed to overcome asymmetrical social and institutional barriers to accessing basic public goods. And third, because in India these structural disadvantages and disabilities have been imposed largely on the basis of group (especially caste) membership, the equality provisions of the Constitution need to take groups into account, even though the rights remain individual rights.
This articulation helps to understand one of the most well-known and controversial doctrines evolved by the Supreme Court in the post-N.M. Thomas era. In Indra Sawhney v. Union of India, the Supreme Court held that the benefits of reservation could not accrue to the ‘creamy layer’ among the backward groups; that is, those individual members who had managed to escape the markers of backwardness to an extent enough for them to no longer count as ‘members’ of that group in any meaningful way.105 It will be immediately obvious that the existence of the creamy layer doctrine is consistent only with an individual-centric view of the right to equality of opportunity. If the right was that of groups, then it would make no sense to undertake an investigation of the relative backwardness of individuals within those groups.106 Furthermore, we can also now understand another doctrine that is, in many respects, the opposite of the creamy layer: in R.K. Sabharwal v. State of Punjab,107 the Supreme Court held that even if a certain number of reserved category candidates managed to compete successfully with the general pool, this would not lead to a proportionate decrease in the number of available reserved seats. However, if reservation is a group right, meant to uplift a historically subo
rdinated group to a level of substantive equality, then it makes perfect sense to stop once the prescribed percentage of representation has been achieved—whether through the general pool or through the reserved quota. On the other hand, if the right is an individual right that is instantiated through the individual’s membership in a group, then the Court’s holding was understandable: the fact that some members of the subordinated group have achieved parity with the rest of society doesn’t affect the scope of the right held by other members of the group.
However, perhaps more important are the implications of a clear understanding of N.M. Thomas—implications that have remained unexplored by the Court even until today. These implications are not limited to an analysis of Article 16, but pervade the entire Equality Code of the Constitution.108
A. Groups
In 1955, in Sukhnandan Thakur v. State of Bihar, a divided full bench of the Patna High Court struck down job reservations for persons who, during the colonial era, had been punished by the British regime for participating in the freedom movement.109 Hewing to the logic of Champakam Dorairajan, the Court held that the reservations could not be traced to Article 16(4), and clearly violated the rule of equality of opportunity under Article 16(1).110 Despite the legitimate claims of political sufferers to government solicitude, the State would have to find some other way of accommodating their needs. The Court’s holding came over a strong dissent by the Chief Justice, who expressed the view that the State did have the power to make reservations in cases of ‘underserved want’111 (a phrase borrowed from Article 41), and that doing so amounted to a ‘reasonable classification’ under Article 16(1).
Two decades later, in a very similar case, Punjab’s decision to provide job reservations for ex-armed forces personnel was challenged. In Jagdish Rai v. State of Punjab, relying upon the Supreme Court’s recent decision in N.M. Thomas, the High Court of Punjab and Haryana upheld it, holding that Article 16(4) was no longer the exclusive source of the power to make reservations.112 Noting the decision in Sukhnandan Thakur, the Court observed that the dissenting judgement had got it right. Therefore:
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