SC Judgment on EWS Defeated Constitutional Objectives of Creation of Egalitarian Social Order – I

An ideal society should be mobile, should be full of channels for conveying a change taking place from one part to other parts. In an ideal society, there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words, there should be social endosmosis. This is fraternity, which is only another name for democracy. Democracy is not merely a form of Government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards fellowmen.”

 — Dr. B.R. Ambedkar

The Supreme Court delivered its judgment in Janhit Abhiyan versus Union of India (‘EWS judgment’) on November 7, in which the author happened to represent the Peoples Party of India (Democratic). I personally feel that the judgment by the Constitution Bench is a negation of express Constitutional principles, which have been recognised by the Constituent Assembly of India, while drafting the visionary document, that is, the Constitution of India, as well as the settled constitutional principles, particularly those enunciated by the nine-judge Constitution bench of the Supreme Court in Indira Sawhney versus Union of India (1992) (‘Mandal judgment’) and the 13-judge Constitution bench of the Supreme Court in Kesavananda Bharati versus State of Kerala (1973).

The objectives of the Constitution, as expressed by its Preamble, is to establish an egalitarian social order by constituting India into a Sovereign, Socialist, Secular, Democratic Republic. Democratic governance is possible by representation of all sections of society. Democracy is the best form or system of governance which is controlled by the citizens, and the ultimate authority is vested in the people.

Indian society was deeply caste ridden and there were only a select few castes which were in the administrative apparatus of the governance. On the other hand, a large majority of the society, which is identified as Scheduled Castes (‘SCs’) in Article 341, Scheduled Tribes (‘STs’) in Article 342, Other Backward Classes (‘OBCs’) in Article 340 and now, Socially and Educationally Backward Classes (‘SEBCs’) in Article 342A of the Constitution, were excluded from social intercourse, as such, they were excluded from administration and governance.

Democratic governance is possible with representation of all sections

Establishing democratic governance was an uphill task for the Constituent Assembly of India. The United Nations has also committed itself for the establishment of an egalitarian society. The fundamental obligations laid down in Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the States should undertake to prohibit and to eliminate racial discrimination in all its forms, and to guarantee the right of everyone, without distinction as to race, colour, national or ethnic origin, equality before the law, the right to housing, the right to work, to free choice of employment, to just and favourable conditions of work, to protect against unemployment, the right to freedom of thought, conscience and religion, the right to housing, the right to work, to free choice of employment, to just and favourable conditions of work, to equal pay for equal work, to just and favourable remuneration, and the right to form and join trade unions.

The framers of the Constitution of India decided to establish an egalitarian society which has representation of all, and it also ensures representation of the sons of the soil (Mulniwasi Bahujans), that is, the SCs, the STs and the OBCs under the scheme of the Constitution; as such, these are constitutionally protected classes. The Constitution provides for representation to the socially deprived sections of the society.

Before dealing with the judgment, let us examine the constitutional principles, as the Constitutional rights of equality, liberty, fraternity and justice are possible for realisation only if effective opportunities are ensured to SCs, STs and OBCs under the scheme of the Constitution. It ensures equality of status and of opportunities, and by assuring the dignity of the individual; the welfare of people, by assuring dignity of all human beings, by assuring the right of equal participation and its enjoyment, irrespective of religion, race, caste, sex, descent, place of birth, or residence; the effective participation of all in governance by eliminating prejudicial and discriminatory factors, with an assurance of ideal social conditions are essential in the process of establishment of an egalitarian social order.

The law exists to ensure proper social life with model conditions. Social life, however, is not a goal in itself, but a means to allow an individual to live dignified life and to allow development of an individual.

Articles 14 to 18 of the Constitution are the code of equality in the Constitution. The Indian social system sanctioned the practice of untouchability; therefore, the society practiced social system-sanctioned discrimination, deprivation, and the worst kind of social exclusion in the form of untouchability, which has been abolished by Article 17 of the Constitution and its practice is declared an offence and is punishable under law. Still, there is a large-scale practice of untouchability in India. Ultimately, a progressive fraternity could be established in society. Therefore, equitable representation in the form of reservation has been ensured in the Constitution.

Democracy is a type of governance of a State. It is a system of government achieved by democratic means, ensuring representation of all sections of society in governance. Social democracy is a facet of democracy, as it ensures representation of all sections of the citizens in every walk of life. Reservation is a tool of representation of every section of society in the institutions of governance. India has followed varna ashram dharma, which has been further degenerated into a deep-rooted caste system that excludes members of the fourth varna, that is, the shudras varna (Backward Classes, for example, SCs, STs, and OBCs), which has been further bifurcated into 6,743 castes (this constitutes more than 85 per cent of the total population, as per the 1931 caste census) from the institutions.

It is a democratic right of every citizen to participate in the democratic process of governance, including elections, to contest as a candidate, as a voter, or as an elector, and there cannot be any distinction or deprivation in the democratic process of governance. The rights, namely equality, liberty, fraternity and justice, have been guaranteed to the citizens under the scheme of the Constitution. Rule of law is the essence of democracy, and democratic rights of equality, liberty, fraternity and justice are the essential prerequisites of a democratic society so that an egalitarian social order could be established. In a democratic State, all are equal before the law and have equal protection of the laws, and no one is above the law.

Democracy and freedom

Freedom of speech and expression means the right to express one’s own convictions and opinions freely by word of mouth, writing, printing, pictures, or any other mode of expression. The right to freedom of expression and information is subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society.”

American lawyer and statesman Abraham Lincoln stated that the word ‘democracy’ is in direct opposition to slavery. Democracy’s preservation is with ‘a new birth of freedom’, according to him. “As I would not be a slave, so I would not be a master”, he proclaimed. Lincoln greatly contributed to the effective progression of democracy by emphasising freedom and equality for all, and was the sheet anchor of republicanism beginning in the 1850s.

Democracy is founded on the right of everyone to take part in the management of public affairs. Therefore, it requires the existence of representative institutions at all levels. There are certain principles of social justice which are participative, and policy priorities as democracy is more committed to human values. In the democratic process, citizens are engaged, more tolerant, and more supportive of the principle of egalitarian social order. It has commitment for a society which respects human life with human dignity and human values.

English philosopher and physician John Locke advocated for the right to property, in addition to the natural rights of life and liberty, while American statesman, diplomat, lawyer, architect and philosopher Thomas Jefferson had advocated for the right to the pursuit of happiness. Life, Liberty, and the pursuit of Happiness is a well-known phrase in the United States Declaration of Independence. It gives examples of unalienable rights, which have been given to all humans by their Creator, and which governments are created to protect.

Natural rights are those rights that are not dependent on the laws or customs of any culture or government. So, these rights are universal, fundamental, and inalienable. Natural law is the law of natural rights. Democracy is “a government in which the will of majority of the qualified citizens rules. It is Government by the freely chosen representatives of the people, and not by the people themselves.” It clearly points out that democracy is a rule of the common man.

Social democracy advocated a peaceful evolutionary transition of society to the socialistic pattern by using established political processes. Social democracy rests on three fundamental features, namely democracy, that is, equal rights to vote and form parties, an economy partly regulated by the State, and a welfare State offering social support to those in need (for example, equal rights to education, health and service). Thus, democracy is an important human evolution which allows governance by representation.

Classification: Economic condition vis-à-vis social origin

On social criteria, American academic Prof. Owen M. Fiss in his article ‘Groups and the Equal Protection Clause’ has defended preferential treatment under the anti-discrimination principle on social identification. He has found that the economic criteria to classify for preferential treatment is ‘vague’ and ‘artificial’ as discrimination in society is based on social classification and not on economic classification. Prof. Fiss has considered that “[t]he defense of the over-inclusion is likely to be couched in terms of administrative convenience”. It would be difficult to pick out those non-blacks who have the same social or economic status as blacks and thus, under the stipulated purposes, are as deserving of preferential treatment as blacks. He has stressed that, “Blackness is an easy criterion to work with”, and the costs inherent in the use of alternative criteria (‘poor’ or ‘low socio-economic status’).

The difficulty with the convenience argument was considered as “it is standard practice to reject such a defense when whites rather than blacks, are the preferred race. This redistribution may be rooted in a theory of compensation-blacks as a group were put in that position by others and the redistributive measures are owed to the group as a form of compensation. The debt would be viewed as owed by society, once again viewed as a collectivity”. He has considered various aspects and said:

“[A] variety of justifications can be offered, and they need not incorporate the notion of compensation. Changes in the hierarchical structure of society-the elimination of caste-might be justified as a means of (a) preserving social peace; (b) maintaining the community as a community, that is, as one cohesive whole; or (c) permitting the fullest development of the individual members of the subordinated group who otherwise might look upon the low status of the group as placing a ceiling on their aspirations and achievements. It is not just the socio-economic status of blacks as a group that explains their special position in equal protection theory. It is also their political status. The power of blacks in the political arena is severely limited. For the last two centuries the political power of this group was circumscribed in most direct fashion-disenfranchisement. The electoral strength of blacks was not equal to their numbers. That has changed following the massive enfranchisement of the Voting Rights Act of I965, but structural limitations on the political power of blacks still persist”. (emphasis retained from original)

The representation and condition of the social group in the political governance has to be considered for ensuring adequate representation of a class of persons; if the representation is less, only in that eventuality, there is need to protect that class which is not represented in the governance. When the representation of the savarna or upper castes and their control over the governance is considered, and their representation is much more than their population, their control over governance is huge, they have control over the resources and the State has not identified or collected any fresh data to justify such special representation of the newly created class, as such, there is no data which could necessitate special advantage by providing representation to the class.

The United States Supreme Court in United States versus Carolene Products Company (1938) applies the “rational basis test” to economic legislation. This is an extremely low standard of judicial review: there is a presumption that the legislation in question is constitutional, and the challenging party must show that the law fails the test. Most legislation enacted by the U.S. Congress or state legislatures that deal with economic regulation falls under rational basis review and, therefore, must only be rationally related to a legitimate State interest.

The fourth footnote in Carolene Products Co. is well known for judicial scrutiny in democratic decision making, and is considered to be the most famous footnote in constitutional law. Footnote Four describes certain legislative acts that might give rise to a higher level of scrutiny: if a law appears on its face to violate a provision of the U.S. Constitution, especially in the Bill of Rights, or restricts the political process that could repeal an undesirable law, such as restricting voting rights, organising or disseminating information and so on, or discriminates against “discrete and insular” minorities, especially racial, religious, and national minorities and particularly those who lack sufficient numbers or power to seek redress through the political process.

The U.S. Supreme Court, in Carolene Products Co., has explained the limitations which arise from “three different sources, which can act either alternatively or cumulatively and which, in any event, are all interrelated. One source of weakness is their numbers, the fact that they are a numerical minority; the second is their economic status, their position as the perpetual underclass; and the third is that, as a “discrete and insular” minority, they are the object of “prejudice” that is, the subject of fear, hatred, and distaste that make it particularly difficult for them to form coalitions with others (such as the white poor) and that make it advantageous for the dominant political parties to hurt them-to use them as a scapegoat”. (The principal legal source of the representation-reinforcing justification for judicial review is the fourth footnote in this judgment, in which then Justice H.F. Stone suggested that, “Nor need we enquire … whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”)

Unrepresentative democracy gives every appearance of being blatantly undemocratic. Representative democracy is an institutional process by which public policy is generated from the preferences of individuals. When that process is impaired, judges may nullify political decisions without imposing their values on the citizenry so long as they protect interests to which the political process would respond were it operating soundly. Because unelected judges are the public officials best placed to be custodians of the political process, democratic commitment not only permits but requires “representation-reinforcing” judicial review. Chief Justice Stone has said that legislation aimed at “discrete and insular minorities” without the normal protections of the political process would be one exception to the presumption of constitutionality and justify a heightened standard of judicial review.

The idea has greatly influenced jurisprudence on the Equal Protection Clause and judicial review. It recapitulated common law jurisprudence by which evidence of fraud or other significant legal defects in the transaction, such as self-dealing or other impropriety, may justify overturning a rule.

Prof. Fiss has further argued that the “past has only an evidentiary relevance; it enables us to make judgments about how long the group will occupy the position of subordination. If the group has occupied the position of subordination for the last two centuries, certainly it is likely they will occupy that position for a long time in the future unless remedial steps are taken. Similarly, if we are told that today a period of perpetual subordination is about to begin for another group, we should be as concerned with the status of that group as we are with the blacks”.

Prof. Fiss has further argued that another possible objection to preferential policy under the group-disadvantaging principle seeks to expand the universe of beneficiaries – the relevant group preferred should not be blacks, but rather the poor. The resolution of this objection: who are the “true” groups in American society today, requires an inquiry into what group identifications are the most important to the individual, either on a psychological, political, economic, or sociological level, or which ones should be encouraged.

However, in judicial inquiry, the court should ask, as per Prof. Fiss “whether there is any rational basis for the legislator or administrator choosing the group delineation that it did. There would be little doubt that an anti-poverty strategy-an admission policy preferring the poor-would be constitutionally permissible”. The objection to preferential treatment for blacks – the one that demands the preferred group be the only constitutionally permissible redistributive strategy. It is this constitutional strait jacket that “is troubling and without poor rather than blacks-seeks to make an anti-poverty strategy the basis in the Equal Protection Clause”.

Thus, the social condition of a person or group is essentially necessary to be recognised as the criteria for elimination The fact that some individual blacks may identify themselves in terms of their economic position (“poor”) does not deny – at least today – the reality of the racial identification – that these individuals also identify themselves as blacks or that blacks are a social group. To acknowledge the multiplicity of group identifications is not to embrace a reductionism that denies the reality of some of the groups. Nor can reductionism be justified on the ground that the preferential policy seeks to improve the socioeconomic status of blacks.

The focus on blacks (as opposed to persons who happen to have the same economic status) should be viewed as a matter of legislative or administrative prerogative – a question of setting priorities. “The plight of the poor may be bad, but, so the legislator or administrator should be allowed to say, not as bad as that of the blacks.”

Social exclusion, social deprivation, and untouchability in India

Social exclusion, social deprivation and the social hatred culminated into untouchability in the Indian social system. There is systematic discrimination and deprivation against persons on the basis of social origin of a group of persons, who are identified as members of the backward classes (for example, SCs, STs, and OBCs). On the other hand, without the distinction between action and inaction and class of person, the comparative disadvantages of a person or a group, and the deprivation of a person and deprivation of a group which is identified as members of the backward classes (for example, the SCs, STs and OBCs), the words “State” and “provision” in the particular Constitutional clause would become superfluous, as the commitment of the Constitution is to establish an egalitarian society and the preference on individual consideration leads to arbitrariness. This is because it distinguishes a class of person who are otherwise similarly placed and at times, even the person who has not been afforded the protection, though such person deserved the protection much more than the protection ensured.

The group identity of a person is determinative of their social condition in the society, including their dignity as a person in the society. The individual identity of a person, however, is not determinative of their social condition in the society, and such, individual identity of a person does not guarantee them dignity as a person in the society. As such, the condition of a person is decided on the basis of their social standing in the society.

At times, the members of the backward classes (that is, the SCs, STs and OBCs) face social deprivation, discrimination, and untouchability in their social intercourse as per the level of their standing in the social order. Society is sharply divided on the basis of caste, and it is based on graded inequality. One caste feels superior to another caste and at the same time, one caste hates another caste, and such social behaviour has been sanctioned by religion. A member of a socially deprived and socially excluded group as caste cannot enjoy dignity and fraternity.

Therefore, social democracy is a very difficult task in Indian society. Thus, the constitutional philosophy has accepted the social origin of a person for protecting their dignity and to assure such person equal opportunity, as the denial of equality is because of the social origin of a person. Its denial or deprivation is not because of the economic standing of a person.

The Manusmriti sanctioned gradation and discrimination against human beings on the basis of birth; it is considered as the Constitution of ‘Manu’ by upper caste Hindus. Over 95 years ago, on December 25, 1927, Babasaheb Dr. B.R. Ambedkar burnt a copy of the Manusmriti during the famous ‘Mahad Satyagraha’ called ‘Manusmriti Dahan Divas’; this was done to protest against the religious ideals that advocated untouchability against the lower classes.

If a statue of ‘Manu’ is installed before a high court, that definitely means to disrespect the constitutional values of equality, liberty, fraternity and justice, as ‘Manu’ is a symbol of inequality, deprivation and untouchability. A high court which adheres to the principle of ‘Manu’ cannot be sensitive to the cause of an egalitarian equality, and for the protection of women and shudras (SCs, STs and OBCs) as they are historically deprived by religious texts.

Though the Constitution provides equality and equal protection in the matter of services, education and so on, but even today, the ruling classes are depriving representation in education, by denying education-based reservation and by imposing conditions which are inhumane for a society.

Reservation is not a poverty alleviation programme as it is a constitutional principle to ensure representation of the socially deprived sections which are unrepresented in the administration. Such a principle of representation cannot be applied for a class of persons who are already overrepresented in the administration. Reservation is a novel method for ensuring representation of the unrepresented classes of citizens in the governance so that democracy could effectively function.

India is a unique country where the larger population is systematically marginalised and the marginalisation is not a surrender of such large majority as the persons who are being marginalised suffer subjugation and untouchability from a group that imposes social conditions of deprivation in the form of legal principles. This leads to the creation of a situation that leads to deprivation of education to the socially marginalised sections of the society.

The judicial activism authorised by the Equal Protection Clause is, under the group-disadvantaging principle, asymmetrical. Prof. Fiss has examined the social status vis-à-vis economic status of a person in the following terms:

“Such a judgment about the urgency of the situation of blacks may be rooted in two considerations. The first is the caste quality of the blacks’ low status – the fact that blacks have occupied the lowest socio-economic rung in America for at least two centuries and will continue to do so unless redistributive measures are instituted. True, we may have always had and perhaps will always have people called “the poor,” but that is to confuse a stratum with the occupant of a stratum. The second consideration is that blacks face disabilities not encountered by the poor (even conceived of as a group). These disabilities manifest themselves in all spheres of life-economic, social, and political, and derive from the fact that the individuals are members of the racial group. These are disabilities that do not saddle persons who are poor. Indeed, in order to elevate themselves, the white poor have incentives to disassociate themselves from the blacks and to accentuate the racial distinction. They have incentives to make blackness the lowest status, for of necessity it is a status into which they cannot fall.”

The conception of constitutional prohibitions as restraints on the use of governmental power is a factor that distinguishes action and inaction for the protection of a constitutionally protected class. This negative concept has historical roots. I suspect that this is probably the reason that the framers viewed their task in drafting clause (3) of the draft Article 10 of the draft Constitution, which is clause (4) of Article 16 of the Constitution. It is akin to an explanation of clause (1) of Article 16.

I also think the negative conception would be the one most consistent with the goal of some undeniable validity to minimise intervention by the judiciary, but the reality is otherwise as it has been primarily entrusted to enforce the Equal Protection Clause. If inaction were viewed as action, the intervention by the judiciary would be enormously increased, if not endless, but we don’t see or visualise it. Intervention by the judiciary might be at odds with our democratic traditions, even tempered by a concern for minority rights or rights of other constitutionally protected groups, and it might push the judiciary beyond the limits of its competence. There is some awkwardness in having the judiciary act as the primary redistributive agency, in large part because it does not set its own agenda and thus cannot rationally order its priorities: should it be bread rather than housing?

The Supreme Court of India has been conferred constitutional power of judicial review under Article 32 of the Constitution, and the High Courts under Article 226 of the Constitution. This power is exemplary, but the Indian judiciary is developing principles to restrict its jurisdiction to deprive or deny the power of judicial review in cases pertaining to the constitutionally protected classes or groups. The express provisions are not enforced on flimsy grounds, which is evident from the provisions pertaining to reservation, particularly reservation in promotion and other allied provisions.

The Constitution (77th Amendment) Act, 1995 was enacted more than 27 years ago, but is yet to be effectively enforced. Thereafter, the provisions were further clarified by enacting of the Constitution (81st Amendment) Act, 2000, the Constitution (82nd Amendment) Act, 2000, and the Constitution (85th Amendment) Act, 2001, and the constitutionality of these enactments was tested and upheld by the Supreme Court in 2006 in M. Nagaraj versus Union of India (2006). Yet, members of the SCs and the STs are not getting reservation in promotion since 1995: while the Constitution Bench in M. Nagaraj upheld the constitutional amendments which inserted Articles 16(4A) and 16(4B) into the Constitution, it had held that “the concerned state will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. … [T]he impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions”. Thus, it is not mandatory for the State to make reservations for SCs and STs in the matter of promotions. Moreover, the court held that:

“The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal”.

(The rest of the piece will be carried in two subsequent parts.)

Courtesy: The Leaflet

Dr. K.S. Chauhan is a senior advocate, practicing primarily at the Supreme Court for the last 36 years.