5. State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
6. Galanter, Competing Equalities, supra.
7. Dr Jayasingrao Pawar, Rajarshi Shahu Chatrapatinche Jahirname va Hukumname (Pune: Mehta Publishing House 2018).
8. For example, Mysore, in 1921: see Encyclopaedia of Dalits in India: Human Rights: Role of Police and Judiciary 280 (Sanjay Paswan and Paramanshi Jaideva eds., New Delhi: Kalpaz Publications 2003).
9. See, e.g., the Government of India Act, 1919; and the Government of India Act, 1935.
10. For an analysis of the shift from group to the individual as the basic normative unit of society, and how nationalism was the driving force behind it, see Rochana Bajpai, Debating Difference: Group Rights and Liberal Democracy in India 89 (New Delhi: OUP 2011).
11. Article 29(2) of the Constitution states: ‘No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.’
12. State of Madras v. Champakam Dorairajan, 1951 SCR 525.
13. Ibid., ¶9.
14. Article 46, Constitution of India.
15. Champakam Dorairajan, supra, ¶10. Importantly, a factor that proved decisive for the Court was that when Champakam Dorairajan was decided, Article 15(4) did not exist.
16. Champakam Dorairajan, supra, ¶12.
17. Missouri v. Jenkins, 515 U.S. 70, 120 (concurring opinion of Justice Thomas); See also Baroness Hale in R (European Roma Rights Centre) v. Immigration Officer at Prague Airport (2004) UKHL 55, ¶82 (UK House of Lords): ‘The object … is to ensure that each person is treated as an individual and not assumed to be like other members of the group’.
18. In S.A. Partha v. State of Mysore, AIR 1961 Kant 220, the High Court of Karnataka pointed this out. The permissive ‘shall not prevent’ language is also found in European legal instruments, and has also been treated as an exception to the rule. For examples, see Sandra Fredman, Discrimination Law 242–46 (2nd ed., New York: OUP 2011).
19. General Manager, Southern Railways v. Rangachari, 1962 SCR (2) 586.
20. Ibid., ¶20.
21. See also, State of AP v. Sagar, 1968 (3) SCR 595, ¶7: ‘The Parliament has by enacting cl. (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement.’
22. M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439.
23. This framing of reservations being about individual equality versus social justice can be seen even in some of the most eloquent judicial defences of affirmative action. See, e.g., the discussion in D.G. Viswanath v. Chief Secretary to the Government of Mysore, AIR 1964 Kant 132 (High Court of Karnataka).
24. T. Devadasan v. Union of India (1964) 4 SCR 680.
25. C.A. Rajendran v. Union of India (1968) 1 SCR 271.
26. See, e.g., the discussion in Sukhnandan Thakur v. State of Bihar, AIR 1957 Pat 617. See also Sheridan, ‘Equal Opportunity of Public Employment’, supra, 785.
27. Rangachari, supra. For a number of examples of the use of Article 14’s reasonable classification standard to test affirmative action schemes under Articles 16(1) and (4), see Galanter, Competing Equalities, supra.
28. Sukhnandan Thakur v. State of Bihar, supra, ¶17.
29. Article 335 of the Constitution, for example, states that ‘the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration’.
30. See e.g., Rangachari, supra.
31. The Patna High Court, in Sukhnandan Thakur, supra, ¶20, labelled it as ‘personal differentiation’. See also the discussion in Virendra Singh Varma v. Additional Director of Agriculture, U.P., AIR 1960 All. 647: ‘For example, if his application had been rejected … on the ground that he had a particular colour, or was tall or short or fat or some other reason which was wholly irrelevant to the qualifications which a candidate should possess, then in that event it might have been said that article 16 had been infringed.’
32. Fredman, Discrimination Law, supra, 109, 234.
33. See, for instance, the reasoning of Baroness Hale in Ghazdan v. Godin-Mendoza (2004) UKHL 30, ¶130 (UK House of Lords): ‘… the sex or colour of the person [is] simply irrelevant to the choice that [is] being made … because it [is] based on an irrelevant characteristic which the woman or the black did not choose and could do nothing about’. See also, Corbierre v. Canada (1999) 2 SCR 203 (Supreme Court of Canada), which used the phrase ‘immutable’. Fredman, Discrimination Law, supra, 14. In the previous chapter, we criticized the immutability approach.
34. For a nuanced critique of the spectrum of choice and control, see the opinion of Lord Walker in R (RJM) v. Secretary of State for Work and Pensions (2008) UKHL 63 (UK House of Lords).
35. T. Devadasan v. Union of India (1964) 4 SCR 680.
36. Ibid., ¶26 (dissenting opinion of Justice Subba Rao).
37. Ibid. Legend has it that Shahuji Maharaja also used the example of horses to persuade an unconvinced critic of the merit of reservations.
38. Ibid.
39. Ibid.
40. State of Kerala v. N.M. Thomas (1976) 2 SCC 330, ¶31 (majority opinion of CJI Ray).
41. Ibid., ¶37.
42. Ibid., ¶37.
43. See, e.g., the observations of the Supreme Court in Triloki Nath Tiku v. State of Jammu and Kashmir (1969) 1 SCR 103.
44. Ibid., ¶208 (dissenting opinion of Justice Khanna).
45. Ibid.
46. Ibid., ¶95 (partially concurring and partially dissenting opinion of Justice Beg).
47. Sukhnandan Thakur, supra, ¶18.
48. Ibid., ¶54 (majority opinion of Justice Mathew).
49. Ibid., ¶55 (majority opinion of Justice Mathew).
50. Ibid., ¶58 (majority opinion of Justice Mathew).
51. Ibid., ¶59 (majority opinion of Justice Mathew).
52. Ibid., ¶60 (majority opinion of Justice Mathew).
53. Ibid., ¶62 (majority opinion of Justice Mathew).
54. See, e.g., Monique Wittig, ‘One Is Not Born a Woman’ in The Lesbian and Gay Studies Reader 103–09 (Henry Abelove et al. eds., London: Routledge 1993).
55. Ibid., ¶53 (majority opinion of Justice Mathew).
56. Ibid., ¶75 (majority opinion of Justice Mathew).
57. Ibid., ¶141 (majority opinion of Justice Krishna Iyer).
58. Interestingly, the formulation of attributing responsibility to ‘society’ was replicated three years later by Justice Brennan at the Supreme Court of the United States, dissenting in an affirmative action case called Regents of University of California v. Bakke, 483 U.S. 265, 369 (1978): ‘… government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have, and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large’. Justice Brennan’s opinion was accepted by the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, making for a fascinating example of judicial dialogue across countries.
59. A point made by Galanter, Competing Equalities, supra, 391–95.
60. The most sustained effort to identify ‘backward classes’ along the markers of educational, political, and social barriers was made by the Mandal Commission, whose findings were challenged, and discussed in some detail, by the nine-judge bench of the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. For a historical chronology of various states’ attempts to identify backward classes in terms of social and institutional subordination, see Galanter, Competing Equalities, supra.
61. For a detailed critique of this position, see H.M. Seervai, Constitutional Law of India, Vol. 1, ¶¶ 9.182–9.203 (3rd ed., New Delhi: Universal Law Publishing 1983). In the fourth and final editi
on of the book, Mr Seervai declined to discuss Thomas in any detail, on the basis that Justice Krishna Iyer, who had ‘tipped the balance’ in Thomas on the question of Article 16(4) being a facet of 16(1), subsequently retracted his views. See H.M. Seervai, Constitutional Law of India, Vol. 1, ¶9.272 (4th ed., New Delhi: Universal Law Publishing 2015). Interestingly, N.M. Thomas’s argument would be adopted by the Constitutional Court of South Africa, twenty-nine years later. See Minister of Finance v. Van Heerden, 2004 (11) BCLR 1125 (CC), ¶30: ‘… our constitutional understanding of equality includes what Ackermann J. in National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Another calls “remedial or restitutionary equality”. Such measures are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution … they are integral to the reach of our equality protection.’ See also, R v. Kapp (2008) SCC 41 (Supreme Court of Canada). The argument would also be accepted by the High Court of Justice in the United Kingdom, thirty-three years later. See R v. London Borough of Ealing (2008) EWHC 2062 (Admin) (High Court of Justice [QBD]). See also, Fredman, Discrimination Law, supra, 240: ‘The growth of such exceptions to the principle of formal equality may signal a change in the underlying conception of equality itself.’
62. See Owen Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy and Public Affairs 107.
63. See, e.g., N.D. Majumdar’s formulation in the Planning Commission, that [the Commission] ‘… cannot recognize individual backwardness … backwardness must be collective’. Cf. Galanter, Competing Equalities, supra, 169.
64. Another slightly different argument is that well-organized groups are best positioned to benefit from affirmative action for the members of those groups. See, e.g., the discussion in K. Ahmad, ‘Towards Equality: Consequences of Protective Discrimination’ (14 January 1978) 13(2) Economic and Political Weekly 69, 71.
65. As is often pointed out, Ambedkar himself wanted reservations to ‘sunset’ in ten years’ time.
66. N.M. Thomas, supra, ¶52 (majority opinion of Justice Mathew).
67. N.M. Thomas, supra, ¶113 (majority opinion of Justice Mathew).
68. As Sandra Fredman points out, conceptually the phrase ‘equality of opportunity’ is consistent with visions of both formal equality and an equality of results. Fredman, Discrimination Law, supra, 2.
69. Galanter, Competing Equalities, supra, 15.
70. Eleanor Zelliot, Doctor Ambedkar and the Mahar Movement (PhD Dissertation, University of Pennsylvania 1969), cf. Marc Galanter, Competing Equalities, supra, 20.
71. See the discussion in Anupama Rao, The Caste Question: Dalits and the Politics of Modern India (Berkeley: University of California Press 2009).
72. J.H. Hutton, Census of India, 1931: Vol. 1 (Government of India, Manager of Publications 1933), available at https://ia802506.us.archive.org/14/items/CensusOfIndia1931/Census%20of%20India%201931.pdf.
73. See Government of India, Report of the Franchise Committee (2nd ed., Government of India Central Publication Branch 1932).
74. For a chronology of events and a critique of the Congress, see B.R. Ambedkar, What Congress and Gandhi Have Done to the Untouchables, Chapter One, available at http://www.satnami.com/WHAT%20CONGRESS%20AND%20GANDHI%20HAVE%20DONE%20TO%20THE%20UNTOUCHABLES.pdf.
75. ‘The Nehru Report, 1928’, The Framing of India’s Constitution: Select Documents, Vol. 1, 58, 60 (B. Shiva Rao ed., New Delhi: Universal Law Publishing 1966).
76. Resolution of Congress on Fundamental Rights, 1931 (The Karachi Resolution), cf. The Indian Nationalist Movement 1885–1947: Selected Documents, 67 (B.N. Pandey ed., New Delhi: Macmillan 1979). At the time, the word ‘disability’ was used to refer to ‘disadvantages’. I, therefore, use the two words interchangeably through the course of this chapter.
77. Galanter, Competing Equalities, supra, 39. Galanter cites the work of M.N. Srinivas.
78. Draft Report of the Sub-Committee on Fundamental Rights, 3 April 1947, The Framing of India’s Constitution: Select Documents, Vol. II, supra, 137-38.
79. Interim Report of the Advisory Committee on the Subject of Fundamental Rights, 23 April 1947, The Framing of India’s Constitution: Select Documents, Vol. II, supra, 294, 296.
80. Parliament of India, Constituent Assembly Debates, Vol. VII, 30 November 1948 (speech of B.R. Ambedkar), available at http://parliamentofindia.nic.in/ls/debates/vol7p16b.htm.
81. Ibid. See also B.N. Rau’s response to a suggestion to drop the word ‘backward’ during the Comments phase of the Draft Constitution in early 1948. ‘Comments and Suggestions on the Draft Constitution’ in The Framing of India’s Constitution: Select Documents, Vol. 4, supra, 3, 31.
82. The Bombay Depressed Classes and Aboriginal Tribes (Starte) Committee, 1929–30.
83. Marc Galanter, ‘Who Are the Other Backward Classes? An Introduction to a Constitutional Puzzle’ (28 October 1978) 13(43/44) Economic and Political Weekly 1818.
84. Parliament of India, Constituent Assembly Debates, Vol. VII, supra 30 November 1948 (speech of Chandrika Ram).
85. In fact, during the debates around the introduction of Article 15(4) into the Constitution through the First Amendment, specifically on the issue of what ‘backwardness’ meant, Prime Minister Nehru categorically stated: ‘We want to put an end to … all those infinite divisions that have grown up in our social life … we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. … But in the structure that has grown up … with its vast number of fissures or divisions …’ Cf. Galanter, Competing Equalities, supra, 66. Galanter points out that the purpose of Article 15(4), as revealed from the Parliamentary Debates, was to ensure ‘special treatment to offset and remedy specifically those social inequalities of caste and community which were seen as underlying and compounding economic differences’. Galanter, ‘Who Are the Other Backward Classes’, supra, 1816. Indeed, a proposal by K.T. Shah to replace ‘classes’ with ‘individuals’ during the debates on Article 15(4) was specifically rejected. See N. Radhakrishnan, ‘Units of Social, Economic, and Educational Backwardness: Caste and Individual’ (1965) 7(3) Journal of the Indian Law Institute 262, 270. This is fortified by the fact that suggestions to replace ‘backward’ and ‘socially and educationally backward’ classes with a purely economic consideration for reservations (which would ask only about an individual’s financial status), have often been made, but never been incorporated into the Constitution. In fact, the decision not to base reservations on individual economic criteria is powerful evidence for the argument that the philosophy of equality at work must take into account group identity in order to achieve meaningful individual emancipation. But see, contra, the judgement in Kesava Iyengar v. State of Mysore, AIR 1956 Mys 20. See also, Galanter, ‘Who Are the Other Backward Classes’, supra, for an account of the importance of ‘social hierarchy’ as an identifying criterion in the work of the Backward Classes Commission; and Radhakrishnan, ‘Units of Social, Economic, and Educational Backwardness’, supra, on the work of the Backward Classes Commission.
86. This reading is also supported by the structure of Part III. As Galanter points out, where the framers intended to ‘consolidate and protect’ group identity, they made specific provisions to do so (Articles 26–30), guaranteeing to religious denominations the right to manage their own affairs in matters of religion (Article 26b), or to minorities to protect their language and culture (Article 29). Galanter, Competing Equalities, supra. See also Rochana Bajpai, Debating Difference, Ch. 4, supra, who argues that the Constituent Assembly made ‘egalitarian individualism’ the basis for its group-oriented safeguards, and specifically rejected an approach based on preserving group identity, in the context of affirmative action.
87. Mr Seervai, for one, finds Ambedkar’s speech ‘luminously clear’ in its exposition of the scheme of Article 16 (the rule/exception model). Seervai, Cons
titutional Law of India, supra, ¶9.281. I am not so sure.
88. Interestingly, in Indra Sawhney and beyond, even after N.M. Thomas, the Court has kept the limit of reservations to 50 per cent. See, e.g., M. Nagaraj v. Union of India (2006) 8 SCC 212. This is clearly inconsistent with the holding of Thomas that 16(4) is a facet of 16(1). When the Court has tried to justify maintaining the cap, it has normally been with reference to the fact that the legitimate claims of the non-backward classes cannot be entirely overridden; furthermore, in judgements after Indra Sawhney, while the rule-exception language has no longer been used, the Court has talked about ‘balancing’ Articles 16(1) and (4), in what seems to be a halfway house between the pre-N.M. Thomas position and the formulation in N.M. Thomas itself. See, e.g., Ashok Kumar Gupta v. State of UP (1997) 5 SCC 201.
89. See, e.g., Parliament of India, Constituent Assembly Debates, Vol. VIII, supra, 30 November 1948 (Speech of Hriday Nath Kunzru).
90. See, e.g., Parliament of India, Constituent Assembly Debates, Vol. XI, supra, 14 November 1949 (Speech of Thakur Das Bhargava).
91. Article 37, Constitution of India.
92. State of Kerala v. N.N. Thomas, supra, ¶64 (majority opinion of Justice Mathew).
93. State of Kerala v. N.M. Thomas, supra, ¶134.
94. Parliament of India, Constituent Assembly Debates, Vol. VII, supra, 4 November 1948 (speech of B.R. Ambedkar).
95. Parliament of India, Constituent Assembly Debates, Vol. VII, supra, 19 November 1948 (speech of B.R. Ambedkar).
96. Seervai, Constitutional Law of India, Vol. II, 4th ed., supra, 1934–1940.
97. This and the succeeding paragraphs are drawn from my earlier work; see, ‘Directive Principles of State Policy’ in The Oxford Handbook of the Indian Constitution 644 (Sujit Choudhry et al. eds., OUP 2016).
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