Supreme Court verdict on sub-classification: How CJI underlined substantive equality

The concept of substantive equality is key to understanding how the court interpreted the law on reservations.

Over the years, the Supreme Court’s view on reservation

In a string of rulings given over the last seven years, CJI Chandrachud has referred to substantive equality to stress that reservation is a facet of merit, and not an exception to the merit rule. In the sub-classification judgment delivered on August 1, the CJI traced the history of the ways in which the top court has interpreted affirmative action.

AS LIMITING EQUALITY: The SC initially took a formal and limiting approach, in which it viewed reservations as an exception to the principle of equal opportunity. Emblematic of this was the court’s view in The State of Madras v. Champakam Dorairajan (1951) where it held that reservation of seats in educational institutions was unconstitutional — there was no express provision that allowed this, like Article 16(4) of the Constitution did for public employment.

In another ruling given in April 1951, B Venkataramana v. The State of Madras, the top court held that only Harijans and backward Hindus can be considered as “backward classes” for reservation in public jobs.

This led to Parliament enacting the first amendment to the Constitution in June that year, which inserted Article 15(4), which is essentially an exception to Article 29 that prohibits discrimination against any citizen on grounds of religion, race, caste, language, or any of them with respect to admission into educational institutions.

This formalistic reading was also in evidence in Indra Sawhney v. Union of India (1992) (Mandal judgment), in which the court observed that Articles 15(4) and 16(4) are special provisions — or, in other words, an exception to the principle of equality — while prescribing a cap of 50% on the total seats to be reserved.

AS A FACET OF EQUALITY: In 1958, the State of Mysore reserved 75% seats in educational institutions for all communities except the Brahmin community. This was challenged before the SC in M R Balaji v State of Mysore (1962), in which the court for the first time prescribed a 50% ceiling for reservation. This limit is contested — but it has endured, with the exception of the 10% Economically Weaker Section (EWS) quota introduced in 2019.

In its decision in State of Kerala v. N M Thomas (1975), the SC made an “expansive and substantive reading of the equality code”, CJI Chandrachud said. The court upheld a Kerala law in which the qualifying criteria for government jobs was relaxed for SC and ST candidates. It held that the law was not an exception to the principle of equality of opportunity.

AS LIMITING EFFICIENCY: Article 335 of the Constitution, which provides for reservation for SCs and STs in services and posts, states that the reservation must be taken “consistently with the maintenance of efficiency of administration”. In the discourse on reservation in the SC that put emphasis on “maintaining efficiency of service”, reservation was effectively seen as being detrimental to “efficiency”, while “merit” (unreserved posts) was equated with efficiency.

This view was reflected in a string of rulings in which the SC shot down reservations in promotions. In the 1992 Indra Sawhney judgment, the SC held that reservations in promotions would dilute efficiency in administration.

In 1995, a constitutional amendment was introduced to allow reservations in promotions and to undo the “catch-up rule” that was upheld in a string of rulings. The court had held that the practice was a constitutionally valid practice to maintain “efficiency”.

Under the catch-up rule, if a reserved-category person was promoted earlier over his superior in the general category due to reservation, the general-category person was allowed to regain seniority over — or “catch up” with — the reserved-category person.

The Constitution (Seventy-seventh) Amendment Act, 1995 inserted Article 16(4A) to allow “consequential seniority”, which meant that the seniority attained by a reserved-category candidate over his peer in the general category by being promoted earlier would be retained for the next promotion. The law on consequential seniority was upheld in 2006 on the ground that the efficiency of administration was only relaxed, not “obliterated”, by the rule.

“The understanding of the Courts at the end of this phase was that the scope of reservation must be expanded to ensure substantive equality in spite of its dilution of efficiency,” the CJI said in his ruling.

Repudiation of the concept of a reservation-vs-merit binary

Drawing from observations and dissenting opinions in other rulings, CJI Chandrachud in his rulings has reframed the quota-versus-efficiency question. In essence, it sees reservation as reflecting the mandate of substantive equality enshrined in the Constitution, and not as a concessionary exception to the equality rule.

Addressing the criticism that the dilution of the evaluating standards or the qualifying marks for SCs/STs leads to “inefficiency,” the CJI has argued that “securing higher marks in an examination does not contribute to higher efficiency and…securing a minimum mark (and not the highest) in the examination is sufficient to maintain efficiency of administration”.

The CJI’s majority opinion states that the stereotype that reservation leads to inefficiency in fact makes promotions inaccessible to SC/ST candidates — the reason why the state introduced reservations in promotions. The constitutional amendments “are an emphatic repudiation of the binary of reservation and merit”, CJI Chandrachud has argued.