Why Modi Government Need Not Fear The ‘Basic Structure’ Test For General Category Reservation

With the passage of Historic 124th Constitution Amendment Bill from both the houses of the Parliament the debate will now shift to whether this decision would be able to pass judicial scrutiny in the Supreme Court.

This piece would categorically explain how this amendment of the Constitution is in consonance with the existing legal framework. This amendment not only helps realize the dream of strengthening the hands of poor in the country but importantly looks at those who were kept outside the umbrella of affirmative action by the state just because they were born in General or forward castes.

Whether the Constitution envisages and mandates uplifting of the economically weaker sections of the society

Granville Austin in his book Indian Constitution- A Cornerstone of Nation illustrates three strands of the seamless web of Indian Constitution. These three objectives of our Constitution include national unity and integrity, democracy and social revolution. The nature of revolution in the society, as envisaged by Constitution framers, was to be socio-economic and was to be pursued by Constitutional means with a democratic spirit.

The two very apparent consequences that appeared to pave the way for this eventual silent socio-economic revolution, in the very early years of enactment of Constitution, were the zamindari abolition laws with land ceiling acts and the scheme of reservations in matters of public employment. Various land ceilings and redistribution programmes of the government, (which even compelled the legislature to devise the 9th Schedule somewhat compromising with the mandated scheme of judicial review) were to ensure the emancipation of the economically weaker sections of the society.

It is pertinent to mention that the Objective Resolutions presented by Jawaharlal Nehru in the Constituent Assembly which later on went to become the Preamble of the Constitution talk about equality of opportunity and economic justice. The directives given to States in Part IV of the Constitution, urge to minimise the inequalities in income, thereby, promoting welfare and securing a just social order.

Article 46 states it even more specifically that, “The State shall promote with special care the educational and economic interests of the weaker sections…….” Those who are arguing that reservation is not a poverty alleviation programme must understand that if it is not so, then it certainly should be one, as per the mandate of the Constitution.

And that is what the government seems to be doing with this amendment.

Whether economic backwardness can become a criteria to give reservations

First of all, it is important to note that reservations in India are of three types.

The first is given to members of SC/ST classes in reservation of Parliamentary and Assembly seats.

The second is given in admission to educational institutions.

The third is given in the matters of public employment i.e., reserving appointments and posts in favour of SC/ST and OBCs.

Article 15 of the Constitution deals with reservation of seats in admission to educational institutions. It is pertinent to mention that the original Constitution never envisaged for any such provision in the three clauses of Article 15 and envisaged absolute non-discrimination on the basis of religion, race, caste etc.

It was only after the decision of the Constitution bench of the Supreme Court in the ‘’State of Madras Vs. Champakam Dorairajan AIR 1951 SC 226’, that the textual basis for reservation was created in the Constitution by inserting Article 15 (4) vide the First Amendment.

So, if it is argued that the original constitution did not have the necessary provisions for reservations based on economic backwardness, then it can also be argued that it also never had provisions for social and educational backwardness.

This raises the question that if Article 15(4) can exist then why can't the proposed Art 15 (6) and Art 16 (6) according to the 124th Amendment, also exist? Essentially, it is just adding another criteria i.e., economic backwardness, as social and educational backwardness were added earlier.

Article 16 of the Constitution is the other provision from where the reservation in public employment emanates. Even this most substantive provision from which the entire scheme of reservations emanated, states in clause (4) that “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.

The exact term that the Article uses is “backward class” and “caste”. Even the Supreme Court in early Constitution bench decisions of ‘State of Madras Vs. Champakam Dorairajan, AIR 1951 SC 226’ and ‘MR Balaji Vs State of Mysore, AIR 1963 SC 649’ completely rejected the idea of caste-based reservations.

In ‘R Chitralekha Vs. State of Mysore’, the Supreme Court upheld the economic basis of reservations adopted by erstwhile Mysore government. Moreover the court has time and again problematised the idea of caste being the sole basis of reservations.

It was only post the 1980s that the Court accepted the argument that caste is also a class within the meaning of this Article. Even then the original meaning of class being a purely economic criterion remains as a living interpretation to which provisions can be made in favour of such backward classes.

A 9-judge-bench of the Supreme Court in the Indira Sawhney case by dissent to the majority, held that economic consideration is relevant to ascertain backwardness.

Further the Supreme Court in ‘Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1’ has observed that economic consideration is a better tool to ascertain social and educational backwardness with the help of statistical data.

“Para 561. Income is a much better determinant of educational achievement than caste. The table below was derived from the Reproductive Child and Health Survey, 2002-2004 (6, 00,000 households surveyed).

Average years of schooling:

SC OBC Upper caste Hindu

Poorest rural quintile 1.6 1.7 2.2

Richest rural quintile 5.1 5.5 6.1

For the upper caste, caste barely helps. These numbers indicate that it is one's income, not caste, that makes a real difference in determining how much schooling one completes. Therefore, if income be the bar to education, economic criteria should be the means by which we identify beneficiaries of special provisions under Article 15(5).”

Whether breaching the upper limit of 50 per cent as set up by Supreme Court would prove fatal for the Amendment

It is vehemently argued that ‘Indira Sawhney Vs. Union of India, (1992) Supp (3) SCC 217’ has set up a very rigid limit and the 50 per cent limit for reservation cannot be exceeded. It has now become imperative to excavate the truth from Indira Sawhney itself, paragraph 800 of the judgment per majority states,

Caste alone is not a proof of backwardness

In the ‘Indira Sawhney’ case itself per majority, the Hon’ble Supreme Court has already held that there may be certain other parameters to ascertain backwardness upholding the decision rendered in Chitralekha case [AIR 1964 SC 1823].

The Supreme Court earlier in the ‘K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714’ has already held on the same lines that

Further, in paragraph 30 the Court concluded by marking reservation to economically weaker sections as a way forward and even as a tool to strike at the root of problem causing cause of social and educational backwardness in society.

The government is ready to justify itself by highlighting the injustice to a very large section of unreserved poor which required a much needed measure. Secondly, the government has come up with an amendment in the Constitution. If at all it is to be challenged, it must be challenged against the basic structure and it is difficult to find out any such basic feature that seems violated by such an amendment.

Whether this attempt to grant reservations would meet the same result as the previous ones

It has been argued that this amendment would end up having the same result as the attempts by Karpoori Thakur, Narasimha Rao and several state governments.

The difference is that his time, a well thought out strategy has been executed by amending the Constitution itself, thereby creating a clear textual basis to ensure reservations for the economically backward sections of the society.

Clearly, the roadmap ahead is through transformative constitutionalism i.e., a commitment to substantive equality and improving the socio-economic conditions of the marginalised, which will, in essence, realise the dreams of the creators of our constitution.