The historical confusions in the Supreme Court’s reservation jurisprudence have come home to roost in the EWS judgment. Despite seven decades of constitutional adjudication on reservation, fundamental questions remain unexamined resulting in a jurisprudence that permits constitutionally perverse outcomes. More precisely, the constitutionally perverse outcomes resulting from the majority judgment are: India’s most marginalised sections that comprise a significant proportion of India’s poor stand excluded from reservation meant for the poor, and second, it is now far easier to provide reservation for this narrowly constructed EWS than it is to do the same for India’s most marginalised sections. These outcomes are fuelled by a flawed constitutional logic that does tremendous disservice to the founding constitutional agreement, social history and lived reality of India’s most vulnerable sections.
At the heart of the flawed constitutional logic in the majority judgment is a profound misunderstanding of the role for reservation and the impact it has on groups identified for reservation. Reservation and its impact on groups can have different meanings and the Supreme Court’s reservation jurisprudence has never engaged with this complexity.
The point here is best exemplified by a few questions. Does reservation in primary education through something like the Right to Education Act mean the same thing as reservation in higher education? Is reservation in public employment meant to achieve the same ends as reservation in higher education? Does reservation in different levels of public employment achieve the same ends? Should we view the purpose of reservation in representative bodies as being vastly different from their purpose in education and public employment? While these questions about the sites of reservation reveal much about unresolved constitutional issues, the same is also true for groups identified for reservation. Are we trying to achieve the same ends when reservation is provided for SC/STs, OBCs, domicile groups, religious minorities, women, transgender people etc? This intersecting matrix of normative considerations has to be engaged with, understood, and accounted for in our constitutional jurisprudence on reservation. Without that, we are going to struggle to demonstrate any fidelity to our equality and anti-discrimination commitments in the Constitution.
In understanding reservation, there are different political, social and normative considerations in play. Reservation could be used for historical compensation, to achieve representation of groups and inclusivity, to promote diversity and as a redistributive measure. Such intersections of the sites of reservation, the groups identified for reservation and the underlying purpose must drive our constitutional jurisprudence on reservation. The absence of that must be acknowledged as having played a major role in the majority opinion that “backward classes” comprising SC/STs and OBCs can be excluded from EWS reservation. Justices Jitendra Maheshwari, Bela Trivedi, and J B Pardiwala are of the view that since backward classes are already provided with reservation in Articles 15(4) and 16(4) of the Constitution, it is legitimate for the 103rd Constitution Amendment to exclude them from EWS reservation. The faulty constitutional logic must be immediately apparent in light of the foregoing discussion.
The reservation for backward classes in Articles 15(4) and 16(4) cannot be seen as redistributive measures aimed at poverty alleviation of the group and its members identified therein. Reservation in Articles 15(4) and 16(4) speaks to a very significant constitutional commitment to recognise, acknowledge and address social injustice and discrimination (both historical and contemporary). There are significant aspects of social discrimination that cannot be overcome by economic mobility and that reality drives the opposition to introduce creamy layer considerations for SC/STs. Social backwardness lies at the heart of Articles 15(4) and 16(4). It then defies this constitutional commitment and logic that the backward classes are excluded from EWS reservation. Economic deprivation and vulnerability are a stark reality confronting India’s backward classes along with social backwardness. It is constitutionally perverse that the compelling need for measures to address social backwardness in turn became a justification for exclusion from measures to address economic deprivation.
The dissent by Justices Bhat and Lalit are right in pointing out this constitutional perversity as the basis for their opinion. If economic deprivation is an integral part of the lived reality of India’s backward classes and such classes comprise a significant proportion of India’s poor, the constitutional justification for excluding them from EWS reservation is hard to see. It would require the majority opinion to argue that current reservation measures are achieving sufficient equality for India’s backward classes, a claim that would be unsustainable in light of compelling evidence that shows exclusion along multiple axes of social, educational, economic, political and cultural factors.
An aspect of the dissenting opinion that hasn’t received sufficient attention is the difference in the treatment it accords to EWS reservation in education compared to public employment. Article 16(4), an original provision of the Constitution, is explicit in its purpose of achieving “adequate representation”. Reservation for backward classes in public employment is permitted only if they are not adequately represented in the opinion of the State.
However, this requirement does not exist for EWS reservation, according to the terms of the 103rd Amendment, and it would anyway make no constitutional sense to talk of adequate “representation” of the poor in public employment. Therefore, we end up in a situation, that the dissenting opinion rightly identifies, where it is far more onerous for the state to provide reservation to backward classes in public employment.
The fact that the Supreme Court has not clarified tricky questions at the intersection of equality, non-discrimination, and affirmative action will only further complicate its reservation jurisprudence. As states begin to test the waters on the permissible extent of reservation beyond 50 per cent as approved by the majority opinion, these constitutional fault lines will once again emerge. Meanwhile, the majority opinion’s constitutional approach to use one aspect of a group’s vulnerability to exclude them from measures aimed at addressing another aspect of their vulnerability is a constitutional moment we will come to regret in due course.
The writer is a Professor of Law at the National Law University, Delhi
