By Manas Agrawal
On May 5, 2021, the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2020(‘Marathas Reservation Case’).[1] The Constitution Bench hearing the matter framed six questions.[2]For the present article, the first and the second questions are pertinent.
These two questions were based on the 50% cap on reservations proposed in the Indra Sawhney case.[3] On these questions, the verdict was that the 50% ceiling of Indra Sawhney merits no reconsideration. Firstly, the issue meriting no reconsideration reinforces the formal versus substantive equality dilemma. Secondly, instead of analysing the Marathas Reservation case in detail, I will locate the crux of the Marathas Reservation Case in the larger debate of equality jurisprudence in India. Towards that, I will particularly focus on two extracts each of two different judgments (Marathas Reservation Case and Mukesh Kumar Case[4] respectively).
The Stance of the Supreme Court
In the Marathas Reservation Case, the first important extract is, “To change the 50% limit is to have a society which is not founded on equality but based on caste rule”.[5] The second important extract is “In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality”.[6] Firstly, using the word ‘caste rule’ itself is problematic because of the negative connotation attached to it. Secondly, saying that nothing is more reasonable than 50% and 50% is for the attainment of equality reaffirms the stern belief of the court in formal equality. This is because, if substantive equality was the aim, then any figure that correctly signifies the extent of group disadvantage is more reasonable than the rigid 50% limit.[7]
In Mukesh Kumar Case, the first important extract is “The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the state”.[8]The second important extract is, “There is no fundamental right which inheres in an individual to claim reservation in promotions”.[9] Hence, affirmative action is not a fundamental right and is entirely dependent on the discretion of the state. Furthermore, the standard of proof for subjective satisfaction is just that there, “must be some material based on which the opinion is formed”.[10] This means that the courts will constrain themselves only to the materials provided (procedural review) as opposed to considering the surrounding political conditions present at that time (substantive review). Thus, because of judicial deference, the state will easily pass the subjective satisfaction test. So, rather than actual backwardness, what matters is the state’s conception of backwardness.
Now, two questions arise. Firstly, what is the rationale behind the posited position in both cases? Secondly, is the position of law consistent with the equality jurisprudence of India?
These are precisely the two questions that I will address through this article, with the help of Rawlsian ideas. In the first part of this article, I will explain the theory of Rawls in the context of affirmative action. In the second part of this article, I will put forward the framework according to which Rawlsian affirmative action should be applied in India. Through the analysis of these two parts, I will argue that ‘The fundamental right to equality should be about substantive equality. Hence, backward classes have a right to affirmative action.’
Analysis of Rawl’s Perspective on Affirmative Action
According to John Rawls, there are two principles of justice.[11]The first principle states that each person has an equal right to enjoy basic liberty. The second principle states that social and economic inequalities have to be factored in so that each person can reasonably expect to attain an advantage(position or an office). So, the first principle is aimed at securing for everyone the same chance to achieve a particular outcome whereas the second principle is aimed at securing for everyone a reasonable chance to achieve a particular outcome.[12]
The difference between these two principles can be better understood through a three-step Rawlsian analysis. First, the conception of equality is known as the formal equality of opportunity. It advocates for a society in which the prevalent notion is of, “careers open to talents”[13] It means arbitrary discrimination on the grounds of gender, race, etc. is prohibited.
Second, assume that inequalities and injustices are widely prevalent since time immemorial in a society. That means it is a non-ideal society. In such a society, mere formal equality would not work as shown by the above-mentioned ‘warrior’ example. The reason is that systematic oppression and ageless discrimination will result in the inevitable outcome that marginalized targeted sections will not be able to match the privileged sections of society. Rawls was insightful of this and hence, he propounded the Fair equality of opportunity theory. It states that “those with similar abilities and skills should have similar life chances”.[14]
Third, however, Rawls then realized that fair equality of opportunity still has a drawback. It is formal equality under the disguise of similar skills and talents. The distribution of benefits is based on the natural abilities of skills and talents.[15] However, the point is that because of hostile discrimination and lack of opportunities, everyone does not have the same skills and talents. To solve this problem, Rawls incorporated the idea of a difference principle in fair quality of opportunity. That means that the need of the hour is to take positive measures to bridge the difference between the privileges and the least advantaged.[16]
To simplify the three steps, fair equality of opportunity coupled with the difference principle leads to true equality.
Now, affirmative actions are one class of policies that are aimed at achieving this true equality. Furthermore, these policies are restricted to the employment and tertiary sector.[17] Furthermore, there can be multiple strategies to employ affirmative action, but for this paper, I will focus only on hard quotas.[18] That is providing a certain number of seats in tertiary education and employment to the underrepresented minorities.[19]
At this stage, it is important to understand the most important component of Rawlsian affirmative action. According to Rawls, any affirmative action measure is aimed at remedying the present outcomes of the past inequalities. However, these measures should not have had permanency. That is because in a well-ordered society, wherein there is no inequality, there is no need for special measures.[20] Furthermore, Rawls himself says that if the basic framework of the society is unjust, then justice is before any notion of efficiency that may be achieved because of formal equality. However, in an ideal society, “justice is defined so that it is consistent with efficiency”.[21] Hence, the assumption is that affirmative action is only temporarily required.
To summarise, if the value of difference principle becomes zero, then true equality will become equal to fair equality of opportunity. (That means “similar chances to people with same abilities and skills”)
This is precisely the behind focusing on Rawls because the Indian scenario is similar to that of Rawls’ and the next section talks about that. Further, I have intentionally not mentioned whether Rawls’ procedural justice will specifically allow for ‘hard quotas’ or not.[22] That is because, in India, the issue is not whether hard quotas are permissible or not but the issue is on how hard quotas are provided. Hence, for this paper, it is sufficient to remain limited to the general proposition which states that Rawls’ theory permits affirmative action.
Application of Rawlsian Ideas in Indian Equality Jurisprudence
In this section, I will focus on the reservation in the employment sector. However, the conclusion is equally applicable to reservations in tertiary education.
Primarily, there are two theories of equality.[23] The first is a ‘colour-blind’ vision of equality.[24] According to this, any classification based on certain prohibited inherent characteristics is impermissible.[25] In the Rawlsian context, this is fair equality of opportunity. The second is the ‘group-subordination theory’.[26] This theory recognizes that certain groups have been discriminated against and have been historically oppressed at different points in time. Hence, there is an imperative need to implement positive measures for these groups. As the basis of injustice has been groups qua groups, any individual who is a member of that group by being a member faces the brunt of discrimination.[27] In the Rawlsian context, this is true equality. The two theories are at odds with each other. The former prohibits affirmative action, the latter permits; the former considers individuals at the heart of quality while the latter keeps groups at the heart.[28] Let us consider the text of Article 16.Article 16(1) is the source of equality in matters relating to the employment sector. The text of the article uses the word, “equality of opportunity for all citizens”.[29] Article 16(2) uses the words, “No citizen shall, on … discriminated against…” These words are in alignment with the individualistic ‘colour vision’ model as these words explicitly prohibit discrimination based on certain grounds.[30] However, Article 16(4) uses the words, “Nothing in this article shall prevent …provision for the reservation…”[31] These words are in alignment with the ‘group –subordination’ model as it is constitutionally permitting the state to provide reservation (‘hard quotas’) to backward classes who have not been adequately represented. Hence, the dilemma is that the same article exhibits both visions of equality.
There are two ways to solve this problem. The first solution is to consider that Article 16(2) is the rule and Article 16(4) is the exception.[32] The support behind this proposition is that article 16(4) starts with the non-obstante clause. Hence, the source of affirmative action lies in art 16(4). Once it has been established that this is the case, ipso facto, affirmative action policies are reduced to the discretion of the state, and the right to reservation is prohibited from coming into the realm of fundamental rights. This is because Article 16(4) is only an enabling provision. If “in the opinion of the state”, a particular group satisfies the criteria of backwardness and underrepresentation, then that group will reap the benefits of reservation.[33] This solution was the rationale behind the posited position mentioned at the start of this paper. However, this solution has the inevitable outcome of making reservation a benefit instead of a right.[34]
The second solution is to consider Article 16(4) as an emphatic restatement of the principles of Article 16(1). Article 16(4) was specifically inserted into the Constitution to give practical content to the already present utopian ideal of substantive equality in article 16(1). Furthermore, the non-obstante clause was used as a legislative strategy to concretely implant the idea that reservations are constitutionally permissible.[35] It was done to rule out any future possibilities of declaring reservations as unconstitutional by any mode of interpretation of open-textured language and not to carve out an exception. By, considering 16(1) and 16(4) as part of the coherent scheme the outcome will be that substantive equality will become the genus and Article 14, 15, and 16 as the species of the genus. Furthermore, then reservations would become a matter of right (assuming the twin conditions of underrepresentation and backwardness) as Article 16 uses the word “shall” making it a positively mandated right. To summarise, the second solution proposes that reservations are not an exception and the only purpose of inserting 16(4) was to immune reservation from the penumbra of uncertainty and bring it into the core of certainty.
If one takes a step back and considers these two solutions, one will realize that I have essentially restated the Rawlsian Affirmative Action theory. On the one hand, Colour blindness is equivalent to fair equality of opportunity and on the other hand, Group Subordination Theory is equivalent to the difference principle.
Now, on the face of it, the second solution seems more feasible considering that it will have the dual effect of [a]mitigating oppression and discrimination and [b] saving affirmative action measures from being the handmaids of the government. However, I will argue that the best solution lies somewhere in the middle of the two above-mentioned propositions.
To state it simply, the best solution is that true equality is the combination of colour-blind and group subordination versions of equality. Here, it can be noted that this is purely a Rawlsian solution where the components of the equation have been replaced. This means that the ultimate goal is to achieve a colour-blind society. However, to reach there, the imperative need is to recognize targeted groups and provide them with affirmative action measures to remedy the past wrongs.[36] Now, there are two reasons why this is the best solution.
Firstly, it is in perfect consistency with the views of the framers of the Constituent Assembly. The words, “Article 10(1) … is a generic principle …we had to reconcile the formula with the demand made by certain communities…”[37] proves this. Draft Article 10 is the predecessor to Article 16. So, 10(1) is a generic principle and it had to be reconciled with the demand of certain communities i.e., reservations. Hence, the aim was to reconcile and not carve out an exception.
Secondly, I will take the example of the Transgender Community to explain this point. The Supreme Court ‘SC’ had directed the State to take affirmative measures for the Transgender Community by taking judicial notice that they are underrepresented.[38] However, reservations are based on subjective satisfaction. This gives the right to an asymmetry problem.[39] It means that while the State must provide some material before granting reservation, however, there is no obligation on the State to provide reservation if it chooses not to collect any data. Now, this asymmetry will be removed if the above-mentioned equation is implemented. This is because; now the Transgender Community can claim reservations as their right as they are underrepresented.[40] Furthermore, this should be combined with the suggestion that, if the court directs affirmative measures, then it should place a reverse burden of proof on the State to show as to why that group should not be given any reservation.
Concluding Remarks
I had posed two questions at the start of this paper. The answers to those questions are: –
Firstly, the rationale behind the posited position is that Article 16(4) acts as an exception to article 16(1). Secondly, however, the rationale is incorrect according to the version of Indian Equality Jurisprudence that I have argued in the paper. According to that, article 16(4) is part of article 16(1). Furthermore, the Marathas Reservation Case proves that the Supreme Court under the façade of substantive equality affirms the idea of formal equality.
Thus, the fundamental right to equality is about substantive equality and hence, backward groups have a right to affirmative action.
The author, Manas Agrawal, is an undergraduate law student at the National Law School of India University (NLSIU), Bangalore.
[1]JaishriLaxmanrao Patil v. The Chief Minister AndOrs., (2021) 2 SCC 785.
[2]ibid [9].
[3]Indra Sawhney v. Union of India, (2000) 1 SCC 168 [94].
[4]Mukesh Kumarv. State of Uttarakhand, 2020 SCC OnLine SC 148.
[5]Jaishri (n 1) [164] (Bhushan J.)
[6]ibid [162] (Bhushan J.)
[7]Gautam Bhatia, ‘A Critique of the Supreme Court’s Maratha Reservation Judgement – I: Equality’ (Indian Constitutional Law and Philosophy, 6 May 2021) <https://indconlawphil.wordpress.com/2021/05/06/a-critique-of-the-supreme-courts-maratha-reservation-judgment-i-equality/> accessed 1 December 2020.
[8]Mukesh Kumar v. the State of Uttarakhand, 2020 SCC OnLine SC 148 [12] (Nageswara Rao J).
[9]ibid [16] (Nageswara Rao J); Ajit Singh (II) v. the State of Punjab, (1999) 7 SCC 209.
[10]ibid [16] (Nageswara Rao J).
[11]John Rawls, A Theory of Justice (2nd ed, Cambridge: Harvard UP 1999) 53.
[12]Kristina Meshelski, ‘Procedural Justice and Affirmative Action’ (2016) 19(2) Ethical Theory and Moral Practice, 426 < https://www.jstor.org/stable/24762636> accessed 30 November 2020.
[13]John Rawls, ‘Justice as Fairness’ in Samuel Freeman (ed), Collected Papers (Cambridge: Harvard UP 2001) 159.
[14]Rawls (n 11) 63.
[15] ibid 64.
[16] Kristina (n 5) 428.
[17]Robert S. Taylor, ‘Rawlsian Affirmative Action’ (2009) 119(3) The University of Chicago Press, 478 <: http://www.jstor.org/stable/10.1086/598170> accessed 30 November 2020.
[18]Thomas Nagel, ‘Equal treatment and Compensatory Discrimination’ (1973) 2 Philosophy and Public Affairs 348, 349-51.
[19] ibid 356.
[20]Samuel Freeman, Rawls (1st and, London: The Routledge Philosophers 2007) 90-91.
[21]Rawls (n 11) 69.
[22] Kristina (n 12) 438-43 (hard quotas are permissible); Robert (N 18) 478 (hard quotas are not permissible).
[23] Gautam Bhatia, ‘Reservations, Equality and the Constitution –I: Origins’ (Indian Constitutional Law and Philosophy, 19 January 2014) <https://indconlawphil.wordpress.com/2014/01/19/reservations-equality-and-the-constitution-i-origins/> accessed 1 December 2020.
[24] Plessy v Ferguson (1893) 167 U.S. 537 (Harlan J. (dissenting)) “In the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution in color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved…. the arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds…”
[25] Reagents of University of California v. Bakke, (1978) 438 U.S. 265 (Powell J. (majority)) “Disparate constitutional tolerance of such [racial] classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them…”
[26] Gautam (n 23).
[27] ibid (Brennan J (dissenting)) “Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice…”
[28] Gautam (n 23).
[29]The Constitution of India 1950, art 16(1).
[30]The Constitution of India 1950, art 16(2).
[31]The Constitution of India 1950, art 16(4).
[32]M.R. Balaji and Others v. State of Mysore, AIR 1963 SC 649 (The exception cannot be bigger than the rule. Using this logic, the court said that the maximum extent of the reservation is limited to 50%).
[33]M. Nagarajv.Union of India, (2006) 8 SCC 212 [85].
[34]Arpita Sarkar, ‘Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services Guaranteed by the Indian Constitution’ (2018) 11(2) NUJS Law Review 213, 227-229.
[35]T. Devadasanv. Union of India and Another (1960) 4 SCR 680[35] (Subbarao J (dissenting)).
[36]State of Kerelav. NM Thomas (1976) SCR 906 [108] (Mathew J).
[37]CA Deb 30 November 1948, vol VII, 7, 63.205 (B.R. Ambedkar).
[38]National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (¶121, Sikri J.) (“When we combine Rawls’s notion of Justice as Fairness with the notions of Distributive Justice, to which Noble Laureate Prof. Amartya Sen has also subscribed, we get a jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs”).
[39]Karan Lahiri, ‘Article 16 and the Concept of a “Power plus Duty”- II’ (Indian Constitutional Law and Philosophy, 14 November 2015) < https://indconlawphil.wordpress.com/2015/11/14/guest-post-article-16-and-the-concept-of-a-power-plus-duty-ii/> 1 December 2020.
[40] National Legal Services Authority (n 38).
The Journal of Indian Law and Society 