Dr. Ayaz Ahmad and Dr. Yogesh Pratap Singh
This article attempts to explain the discursive role of higher judiciary in shaping the constitutional discourse on reservation which finally culminated in the form of 103rd constitutional amendment for upper-caste quota. Such patent assault on constitutional goals of social justice through the Supreme Court and the High Courts once again heightens the need for Bahujan (SC/ST/OBC) representation in higher judiciary. However, brahmanical strategies to exclude Bahujans from the higher echelons of judicial power are operative in multi-layered fashion through inter-institutional caste grid which makes the goal of representative judiciary even more difficult to achieve. But the move for upper-caste quota, more than ever, makes it possible to pierce the inter-institutional caste grid couched in the language of separation of powers, institutional independence and principle of checks and balances. The examination of upper caste quota through judicial pronouncements reveals the operation of this inter-institutional caste grid characterized by Brahmin-Baniya hegemony.
Judicial discourse on reservation from 1950 onwards focused on expanding formal equality as enshrined under Articles 15(1) and 29(2) and drastically confining the principle of substantive equality inherently embedded in Articles 14, 15, 16, 38, 46, 332, 335, 338 and 340. This strategy was initially developed to preempt claims of proportionate representation in educational institutions on mythical grounds. The first-ever attempt for reservation did not find favour of constitution bench composed with Brahmin-Sayyed judges in Champakam Dorairajan case (1951) as it marginally restricted savarna space by prescribing their percentage of representation and created some space for Bahujan students in the process.
It was left to determined Periyar and Babasaheb Ambedkar to claim the Bahujan space in educational institutions by convincing the Parliament to pass the First Constitutional Amendment which enabled the State to make special provision for the representation of Bahujan class in educational institutions. Despite this, constitutional courts deployed the ‘judicial policy of postponement of social justice’ to deny Bahujan representation both in educational institutions and State services. But the First Amendment and implementation of social justice policies by the Southern States under Periyar’s watch made High Courts and the Supreme Court quite anxious. The first major blow to reservation came in Balaji case (1962) where the Supreme Court made three strategic moves. First; with respect to the determination of criteria for the identification of socially and educationally backward classes, the Supreme Court underplayed the role of caste and made a case for determining the backwardness on the basis of economic indicators. A constitution bench crammed with Brahmin-Baniya judges carefully crafted the economic argument to prevent social and educational arguments from taking strong roots. In a way, the seeds of upper caste quota on economic grounds were planted in this judgment. Interestingly, caste as a factor for determining backwardness was marginalized by fraudulently assuming that the test of castes would be inapplicable to Muslims and Christians. Second; it prevented the categorization of OBCs into Backward Class and More Backward Class by holding that such a categorization is outside the scope of Article 15(4). Third; a casteist reading of Article 335 in the context of Article 15(4) which eventually paved the way for 50% ceiling and used in Rangachari’s case (1961) to scuttle reservation in promotion.
Legitimization of Balaji Rule
The strategic interpretation of Balaji case was legitimized over decades by the courts, jurists, journalists and textbook writers. For instance, Supreme Court in Devadasan (1963) and Chitralekha (1964) reiterated the economic argument of Balaji with greater emphasis. Such fraudulent reasoning was utilized by the constitutional courts to delay social justice so that the ruling class was able to develop neutralizing strategies. However, relentless social movements forced the Supreme Court to concede some space in N. M Thomas case (1975) in the following words:
“…an aware mass of humanity, denied justice for generations, will not take it lying down too long but may explode into Dalit Panthers, as did the Black Panthers in another country…Jurists must listen to real life and, theory apart, must be alert enough to read the writing on the wall! Where the rule of law bars the doors of collective justice, the crushed class will seek hope in the streets!”
It was the writings of crushed Bahujan class which compelled the Supreme Court to reconsider its obstinate position on reservation. But true to its casteist nature and to subvert the writing on the wall, the Supreme Court laid the foundation of creamy layer in the same case. Savarna lawyers and judges in N. M Thomas case onwards started expressing their anxieties about the impact that social justice policies might have on their disproportionate share in public services and educational institutions. Therefore, by the time Indira Sawhney (1992) came for decision in Supreme Court, there was already a Notification for 10% quota on economic grounds. In Indira Sawhney (1992) case, the Supreme Court could not immediately make out how to uphold 10% quota for upper caste as in the same judgment it had to freeze many anti-social justice devices like creamy layer, 50% ceiling, prevention of reservation in promotion etc. which were developed over a long period of time. However, in the same judgment, the Supreme Court specifically advised the ruling castes/class to cloak the provision for upper caste reservation in the form of economic backwardness to make it constitutionally valid.
It was now left to the political wing of upper castes which was alarmed by the partial implementation of Mandal Commission report to come up with a constitutional strategy to enforce upper caste quota. BJP in 2003 appointed a Group of Ministers to come up with ideas that can be implemented for the poor among the upper castes. In 2004, a task force was set up to work on the criteria of reservation for the economically backward savarna. In 2006, the Congress-led and RSS guided UPA 1 appointed commission to study separate reservation for economically backward people from the upper castes. The commission submitted its report in 2010, the proposal to implement it was prepared by 2013 which involved an amendment to the constitution. Eventually, on 12 January 2019, conceived by Courts and delivered by RSS guided Congress and BJP, the constitutional amendment for 10% reservation of upper castes in the form of EWS was notified. It is now being implemented at lightning speed by different government departments both at the central and state level.
Constitutionality of Upper Caste Quota vis-a-vis Basic Structure Doctrine
The constitutionality validity of 10% upper caste quota can be challenged only on the ground that it violates the basic structure of the constitution. However, in order to appreciate this mechanism, one needs to understand the basic structure doctrine evolved and practiced by the Supreme Court. Constitution of India was drafted by the Constituent Assembly which was elected by provincial legislatures which in turn were elected by an electorate restricted by property and educational qualifications which were the monopoly of Ashraf-Savarna castes. Thus, the Constituent Assembly was not elected by the adult franchise and did not have the full approval of socially and educationally backward classes of its time. Nevertheless and in tune with the well-established tradition of constitution-making, the Constituent Assembly enjoyed full power and authority to make the Indian constitution. But as no one generation can bind all succeeding generations, the power of amending the constitution is inbuilt in every constitution which is passed over from generation to generation. Power of amending the constitution through constitutionally prescribed procedure operates as a device through which constitutional allegiance can be renewed by each generation. Therefore, power of amendment like the power of making the constitution is beyond the scrutiny of courts as courts themselves derive their legitimacy from such powers under the constitution. Indian constitution too preserved this right of ensuing generations to amend the constitution through the Parliament with a special procedure prescribed under Article 368.
However, the Supreme Court in Kesavananda Bharati case (1973) by a wafer-thin majority of 7:6 laid down that even the constitutional amendment can be judicially reviewed if it infringes the basic structure of the constitution. Power of the Parliament to amend the constitution was recognized but it was utterly limited by the condition that the Parliament cannot alter or destroy the basic structure of the constitution by using its amending power. Strategically, the precise contents of the basic structure of the constitution were left undefined and kept open. Over a period of time the Supreme Court has held that the basic structure of the constitution includes Fundamental Rights, Federalism, Secularism, Power of Judicial Review, Rule of Law, Parliamentary System of Government, Independence of the Judiciary, Principle of Free and Fair Elections, Powers of the Supreme Court under Article 32 and High Courts under Article 226 and a few more vague principles. Moreover, the Supreme Court misappropriated itself the power to add on to this list as and when it deems fit in any case before it. In effect with such wide and arbitrary powers, the Supreme Court has transformed itself into some form of a permanent Constituent Assembly but without the approval of the people!
Surprisingly, the basic structure doctrine failed to provide any protection against the imposition of emergency in 1975 and yet it was legitimized as a guarantee against similar excesses in the unforeseeable future. There is not even one instance where the basic structure was used to protect Bahujan interests. On the contrary, serious attempts have been made (M Nagaraj case 2007) to utilize this doctrine in order to derail social justice oriented amendments to the constitution. In all probability, this doctrine would eventually be used as a safety valve against the legitimate exercise of the power to amend the constitution by the Bahujan controlled Parliament. Under the present circumstances, the 103rd Amendment Act can be invalidated on the ground of violation of the basic structure and the reasoning for such a conclusion can be formulated on the basis of inner logic which governs the doctrine of the basic structure. It would go something like this; “Fundamental rights are part of the basic structure of the constitution, fundamental rights include right to equality, right to equality includes both formal equality and substantive equality, provision of reservation based on social and educational backwardness, in turn, is part of substantive equality, reservation on economic grounds violates the principle of substantive equality, 103rd Amendment Act thus is in violation of fundamental rights which is the basic structure of the constitution.” Every part of this reasoning is based on extent principles articulated by the Supreme Court in different cases yet, it is highly unlikely that the present Supreme Court which is completely under the control of Brahmin-Baniya class and committed to protecting their interest would even consider such reasoning let alone base its judgment on it. The thumb rule of the higher judiciary it appears is; logic and reasoning be damned but the interests of upper castes must be protected at any cost.
Bahujan Reservation vs. Ashraf-Savarna Reservation: Constitutional Courts Suffering from Selective Amnesia
Inexplicably, all articles and clauses dealing with social justice even in Part III of the constitution were in the form of enabling provisions which obliterate the difference between Directive Principles of State Policy and Fundamental Rights. Such haziness around policies of social justice only enables the State and higher judiciary to drag their foot on Bahujan reservation for as long as possible. As a result, OBC reservation at the central level could not be implemented despite Article 16(4) until the early 1990s. Many states are yet to implement Bahujan reservation to the legally prescribed limits. Even when halfhearted and belated attempts were made for Bahujan reservation they got stayed by the higher judiciary on one pretext or the other. Invariably, final judgment on such cases came only after substantially diluting their effect and imposition of dilatory conditions. Article 15(6) and 16(6) added by 103rd Amendment Act are also enabling clauses but seem to operate in a different realm altogether. There seems to be an active competition between different departments of the central and state governments as to who will implement it first! Within days of enactment cabinet announcements for the implementation of savarna-ashraf quota started coming thick and fast and so far, none of these attempts got stayed by the higher judiciary rather it has become the ardent facilitator of upper caste reservation. In the process, following a series of ‘quantifiable data’ which higher judiciary in the past had demanded from every attempt of social justice for the Bahujan class is lost without demand:
1. The State must collect quantifiable data on the backwardness of the class for which the provision for reservation is being made.
2. The State must provide quantifiable data on the inadequacy of the representation of that class in public employment.
3. The State must establish, again through quantifiable data that the general efficiency of service as mandated by Article 335 would not be affected.
The higher judiciary miraculously seems to have forgotten all these requirements of ‘quantifiable data’ in case of ashraf-savarna reservation while deciding the stay applications on upper caste quota. Nor did it insist on the placement of material on record showing that there was a compelling necessity for the exercise of the power under 103rd Amendment Act, a mandatory condition culled out from M Nagaraj (2007) which was used by the Supreme Court in BK Pavitra I (2017) to strike down Sections 3 and 4 of the Reservation Act 2002 of Karnataka. Moreover, breach of 50% ceiling has been frequently invoked by the apex court to stay the implementation of reservation provisions meant for Bahujan and it should have been sufficient ground to stay the impugned amendment. But it appears that there are different yardsticks to measure Bahujan interests vis-a-vis Savarna interests by the higher judiciary. This is certainly not a one-off case of a momentary lapse of judicial discretion. It forms part of a series of cases on social justice where non-representative higher judiciary seems to suffer from a chronic form of selective amnesia. The mandatory requirement of quantifiable data on the inadequacy of the representation of ‘that’ class in public employment has been deliberately and purposefully dropped from Section 3 of the 103rd Amendment Act which inserted Article 16(6) in the constitution. This would provide an excuse to the higher judiciary to review the provisions for upper-caste quota on a scale different on which Bahujan provisions for reservation have been reviewed since coming into being of the Indian constitution. Even in the absence of it, the higher judiciary would have in all probability conceived some other excuse to achieve the same result.
Non-Representative Higher Judiciary and its Precarious Implications
Ever since the transfer of power from the British to Congress, all state institutions have been inhabited by a few dominant caste groups. It has had the most undesirable influence on the democratic character of state institutions brought into existence by the Indian constitution. Principle of separation of powers translated into a principle of checks and balances has been the greatest casualty of this brahminocracy. The dogma of separation of powers simply melts away in the wake of umbilical caste unity across state institutions. For example, in Habeas Corpus (1976) case the Supreme Court miserably failed to protect basic liberties of people which were under attack and made a mockery of the principle of checks and balances. A non-representative higher judiciary could not stand up to the authoritarian Prime Minister who came from its own caste/class. Again during Kamandal agitation, the higher judiciary failed to prevent the failure of legislative and executive wings of the state to uphold constitutional democracy endangered by politically ambitious fellow caste brethren. Sharing of power by diverse social groups is, therefore, a better guarantee against autocratic tendencies than the multiplicity of institutions avowedly designed to checkmate such threats. The higher judiciary can act as an effective check on the vast powers of executive only if it is representative of different social groups who stand to lose the most under an authoritarian anti-democratic regime. It is the lack of such representative character which makes Indian higher judiciary to dutifully blink whenever the executive embarks on autocratic adventurism.
Similarly, the non-representative higher judiciary has constantly punctured the constitutionally envisioned social revolution. It continues to mediate the transition from ‘Brahmanic Socialist State’ to ‘Brahmanic Capitalist State’ on behalf of ruling castes with regressive outcomes. Disingenuous techniques have been adopted by the higher judiciary to give effect to the policy of denial of Bahujan representation at all spaces preceded by the term ‘higher’! Let’s take the issue of Bahujan representation in ‘higher education’ in neoliberal times and the role of the higher judiciary. With the major share of higher education now in private hands, the Supreme Court in P.A. Inamdar case (2005) declared that the State could not impose its policy of reservations on the private institutions. To overcome this myopic verdict, Article 15(5) had to be introduced in the Constitution. While the constitutional validity of Article 15(5) was upheld in A. K. Thakur case (2008), the judicial policy of postponement of social justice was at full play in private higher education as well. Firstly, the Supreme Court through its judgment in Inamdar case ensured that the Bahujan do not get representation in private higher education at its formative stages. Secondly, Article 15(5) is again only an enabling provision which means that the issue of representation of Bahujan students & staff (both academic administrative) in private higher education is now dependent upon the sweet will of Legislature the Executive of each State. The net effect of Inamdar judgment is that it postponed the question of representation of Bahujan in private higher education by a decade or two by making it contingent on the political conditions of different States. Even where the political will could be mustered to implement the mandate of Article 15(5) the judicial hurdles continue to abound. For example the State Legislature of Uttar Pradesh passed the Admission of Educational Institutions (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2006 in order to override the decision in Inamdar by making provision for reservation of seats for SC, ST and OBC classes, in admission to educational institutions, including private educational institutions. But the Allahabad High Court prevented the enforcement of this Act on one pretext or the other and finally gave a fatal blow to it by declaring the key provisions of the Act unconstitutional in 2011 in Sudha Tiwaricase. The net result is that there is no provision for representation of Bahujan in private educational institutions of UP till date despite the enactment of Article 15(5).
Bahujan Representation in Higher Judiciary
Under Article 16(4), reservation for SC, ST, and OBC in the higher judiciary can become a reality through legislative or executive instrument. But the Supreme Court has been laying down epistemological foundations for decades to thwart any such attempt in future by construing that reservation in super-specialty courses/higher echelon of power would impair the efficiency of administration under Article 335. On the contrary, the thrust of Article 335 is to make the administration efficient by ensuring representation of diverse sections through reservation or other instruments of affirmative action. Therefore, it is essential to take into consideration the claims of the members of SC/ST and OBCs while making appointments to services and posts in connection with the affairs of the Union or of a State which apparently includes the higher judiciary. Thus, a combined reading of Article 16(4) and Article 335 provides full scope for Bahujan representation in the higher judiciary but we need to defeat the brahmanical tendencies deeply embedded in the decision making of Supreme Court.
Bahujan Representation in Higher Bureaucracy
The story of Bahujan representation in ‘higher bureaucracy’ is equally revolting. By the end of the 1950s, it became clear that due to hatred in the belly, Bahujan representation in higher bureaucracy could not be ensured without some provision for reservation in promotion. Legislative attempts to make reservation in promotion by some states were constantly blocked by the higher judiciary. Indira Sawhney (1992) nailed it to such an extent that 77thconstitutional amendment (1995) which added Article 16(4A) could make enabling provision for reservation in promotion only for SCs and STs impliedly excluding OBCs from its ambit. Promotion scheme under Article 16(4A) was yet another device after Creamy layer to mark out reservation policy of SCs and STs from OBCs so that one group can be played against the other. Thus, while paying lip service to the wily provisions of Article 16(4A) in BK Pavitra II judgment (2019), the Supreme Court did not miss the opportunity to highlight these two apertures in reservation policy created by itself! This judgment also attempted to integrate the creamy layer principle into the basic structure of the constitution and made a forceful case for the extension of the creamy layer principle to SC and ST categories as well. These tactical interventions by the higher judiciary enabled the legislature and the executive; firstly, to make higher bureaucracy subservient to the corporate bosses which characteristically comprises of Brahmin-Baniya duopoly so that whenever a few SC/ST officers reach senior positions in higher bureaucracy they continue to take orders from brahmanical class rather than the other way round and secondly, to make provision for direct recruitment of higher bureaucrats without any provision for reservation. This pretty much sums up why the higher judiciary held up reservation in the promotion even for Scheduled Castes and Scheduled Tribes from the late 1950s before finally approving it in 2019 (BK Pavitra II). Even this seemingly progressive judgment reiterates anti-reservation positions in a subtle manner by quoting sharp lines from earlier deceptively progressive judgments. Consider these lines quoted in BK Pavitra II from Nagraj (2006) and Jarnail (2018) judgments respectively:
1. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country and, 2) There may be certain posts right at the top, where reservation is impermissible altogether.
The second idea was authoritatively mooted in Indira Sawhney (1992), repeated in Jarnail and repeated again in BK Pavitra II to create a certain consciousness against social justice measures! It is yet another example which establishes that the traditional concept of separation of powers is inadequate to understand the performative dimension of the Indian legislature, judiciary, and executive. Once the performative dimension of the three wings of the Indian state is understood as unifying and strengthening the caste order, the dangers of non-representative higher judiciary become quite palpable. In fact, higher judiciary emerges as the linchpin of inter-institutional caste grid which often euphemistically passes as the sentinel on the qui vive for the protection of fundamental rights. Alignment of guardian of constitutional values, with ruling caste groups, inevitably implies the death of constitutional and social democracy. Introduction of 13 point roster and dilution of SC, ST Atrocities Act by the higher judiciary indicates the perpetuity of such alignment. Unless the umbilical cord tied with caste identity between higher judiciary and legislature/executive is broken by making all a representative institution, the political democracy would remain endangered.
Concluding Note
Thus, the genesis of upper caste quota on economic grounds lies in the non-representative character of the higher judiciary which built the conditions under which it could be imagined by the brahmanized political class. Legal strategies to roll out such a quota were also developed, streamlined and supplied by the same judiciary. Therefore, every sincere attempt to fight out EWS and similar such provisions must make serious efforts for Bahujan representation in higher judiciary. These efforts include embracing legal education through the creation of educational institutions owned and controlled by the Bahujan class. An educational space animated by Phule-Ambedkarite ideas integrating law with social sciences can become the launchpad for Bahujan representation in higher judiciary. With Bahujan leadership of higher judiciary, things like 103rd Amendment Act would not become a reality. In addition, it would become possible to unleash the revolutionizing potential of Indian constitution to establish social democracy as propounded by Babasaheb Ambedkar. On the parting note, it is instructive to recall Babasaheb Ambedkar’s famous lines about every constitution:
“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad.
However bad a Constitution may be, if those implementing it are good, it will prove to be good.”
It is high time that the Bahujan class gets on to implement the constitution in the Parliament, Legislatures, Governments and most importantly in the higher judiciary.
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Dr. Ayaz Ahmad is the Head, Glocal Law School, Saharanpur-UP.
Dr. Yogesh Pratap Singh is Professor of Law and Registrar, National Law University, Odisha, Cuttack.
