Abhishek: How did the 124th amendment bill and 103rd CA Act come about?
Ayaz: The constitutional debate in courts around reservation from 1950 onwards focused on reducing reservation to an exceptional policy instrument. Towards this end, the principle of formal equality as enshrined under Articles 15(1) and 29(2) were given primacy over the principle of substantive equality as proclaimed by the second part of Article 14 and Article 46. This strategy was initially developed to preempt claims of proportionate representation in educational institutions on mythical grounds. For instance, the provision for reservation of Brahmins and upper castes did not find favor with High Court (HC) and Supreme Court (SC) which was led by 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. With reference to one of the Brahmin petitioners, the Supreme Court observed, “…what is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin”. By invoking the extra-constitutional ground of ‘merit’ the Supreme Court in Champakam Dorairajan case implicitly held that all seats in educational institutions should go to Brahmins!
It was left to the indomitable Periyar and Babasaheb Ambedkar to claim the Bahujan space in educational institutions by forcing the Parliament to pass the First Amendment to the constitution. It was in the form of an enabling clause which made it possible for the State to make a special provision for the representation of the Bahujan class in educational institutions. Despite the First Amendment, SC and HCs 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 the SC and HCs quite anxious. The first major blow to reservation came in the 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. For this purpose, the Supreme Court underplayed the role of caste and made a case for determining the backwardness on the basis of economic indicators. A bunch of five Brahmin-Savarna judges carefully crafted the economic argument to prevent the social and educational argument from taking strong roots. In a way, the seeds for EWS amendment Act (2019) 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 Classes and More Backward Classes by holding that such a categorization is outside the scope of Article 15(4); finally, a case for limiting the quantum of reservation was built by casteist reading of Article 335 in the context of Article 15(4) which was eventually given the shape of 50% ceiling. Around the same time, Article 335 was similarly read in Rangachari’s case (1961) to scuttle reservation in promotion.
These themes from Balaji case were developed, championed and legitimized over decades by the courts, jurists, journalists and textbook writers. For instance, SC in Devadasan (1963) and Chitralekha (1964) cases reiterated the economic argument of Balaji judgment with greater emphasis. Such fraudulent reasoning was utilized by the HCs and SC to delay social justice so that the ruling class was able to develop neutralizing strategies. However, relentless social movements for social justice forced the SC to concede some space in the N. M Thomas case (1975). Pressure from social movements was acknowledged by SC 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!” 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 up for decision in the Supreme Court, we already had a Notification for 10% quota on economic grounds. In the Indira Sawhney (1992) case, the SC 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 developed over a long period of time.
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 Cong-RSS-led UPA1 appointed a 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. Here we are in 2019 with the 10% EWS, conceived by courts and delivered by Cong-RSS and BJP.
Abhishek: What is meant by the Basic structure of the constitution?
Ayaz: In theory, constitutions are made by people and what is made by people can also be amended by them. In a democratic society, such making and amending of constitutions is done by the representatives of the people. One can always quarrel with the method of election to question the representative character of the elected body. But once a body is elected by an agreed procedure with the power to make or amend the constitution there are usually little or no restrictions on its capacity to make or amend the constitution.
The Constitution of India was made by the Constituent Assembly which was elected by provincial legislatures which in turn were elected by an electorate restricted by property and educational qualifications. Back then, such proprietary and educational status was the monopoly of Ashraf-Savarna castes which is why the Constituent Assembly was disproportionately populated by these classes. 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. As a result, very little space could be secured for SC/ST/OBC classes in the constitution. Also, please keep in mind that this Constituent Assembly was truncated by the partition and worked under the specter of communal violence. It partially explains why there was no express provision for the Pasmanda in the original constitution although it was the most vulnerable class of that period. 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, the 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. It implies that constitutional amendments are not subject to judicial review, that they cannot be invalidated by any court. Indian constitution too preserved this right of succeeding generations to amend the constitution through the Parliament with a special procedure prescribed under Article 368.
However, the Supreme Court of India in Kesavananda Bharati case (1973) by a wafer-thin majority of 7:6 laid down that even the amendment of the constitution can be judicially reviewed. But the scope of such review was limited to the basic structure of the Constitution. It means that if a constitutional amendment violates the Basic Structure of the Constitution then it can be invalidated by the Supreme Court. Power of the Parliament to amend the constitution was recognized but it was seriously limited by the condition that the Parliament cannot alter or destroy the Basic Structure of the Constitution by using its amending power. Curiously, the precise contents of the Basic Structure of the Constitution were left undefined and kept open. Over a period of time 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 arrogated 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!
The Basic Structure doctrine was a result of a turf war between Brahmin-Savarna controlled Parliament and Brahmin controlled Supreme Court. Prospects of the Parliament gradually coming under the control of the Bahujan were greater than the Supreme Court. So it is not difficult to speculate why the tussle eventually ended against the Parliament. With this has gone the possibility of Bahujan gloss on the constitution. Until the Parliament comes under Bahujan control, and there is a simultaneous Bahujan control of the Supreme Court as well! In this context, please note how the Basic Structure doctrine was legitimized by the imposition of emergency in 1975. My feeling is that 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 only if it is found to be in violation of the Basic Structure of the Constitution as understood by the Supreme Court. The reasoning for such a conclusion is not difficult to formulate. It would go something like this;
Fundamental rights are part of the Basic Structure of the Constitution, fundamental rights include the right to equality, and the right to equality includes both formal equality and substantive equality. The 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. Hence, 103rd Amendment Act violates the basic structure of the Constitution and therefore it is void for all purposes.
But I don’t think that the present Supreme Court which is clearly under the control of the Brahmin class would even consider such reasoning let alone base its judgment on it.
Abhishek: What are the needs and possibilities of expanding the scope of distributive justice in the Indian Constitution?
Ayaz: With the alarming increase in social and educational inequalities, inefficiency in administration and corruption of the Brahmin-Savarna ruling class, the need of expanding the scope of distributive justice can hardly be overemphasized. But the possibilities of such expansion under the Indian constitution depend on who gets to work on it in the Parliament, Legislatures, Governments and very importantly in the courts. On this point, I am reminded of Babasaheb Ambedkar’s famous lines, “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.”
Take for instance the case of Dalit Pasmanda representation in the State. Article 14, 15 and 16 are emphatic in their assertion that there can not be any discrimination on the basis of religion. But, the Presidential Order 1950 issued under Article 341 of the constitution discriminates against Dalit Pasmanda only on religious grounds. In this case, the constitution is subverted at multiple levels: by the Parliament which has the power and duty to amend the communal Presidential Order, by the Governments who can always make special provisions under Article 15(4) and 16(4) for socially and educationally backward class which includes within its ambit Dalit Pasmanda and finally, the Supreme Court which should have adjudicated upon the unconstitutionality of the communal Presidential Order of 1950 at the first opportunity.
Let’s take another example, the question of Bahujan representation in higher education. As per All India Survey on Higher Education 2017-18 despite relatively undisputed reservation policy for SCs & STs in admission provided by Article 15(4) of the Constitution the Dalit representation in higher education is 2.89% and the corresponding figure for ST students is only about 2.01%. The fate of OBC representation in higher education is worse. These figures are primarily driven by the lack of Bahujan representation in private educational institutions. According to different estimates, the private sector has already cornered more than 70% share of higher education and expanding at a much faster rate in comparison to the public sector. Under such a dismal scenario special provision with respect to private educational institutions under Article 15(4) would have been a natural response. However, by the time the Supreme Court could reconcile with the idea of representation of OBCs in public institutions of higher education in States it was already 1968. From here on characteristically, only those States could make some progress on the question of representation of OBCs in public higher education where the Legislature & Executive had already become reflective of political representation of OBCs. Certainly, Parliament of India could not acquire such a character even as late as 2007 when Central Educational Institutions for the first time made provision for the representation of OBCs in central institutions of higher education. By this time, the issue of representation of OBCs in public higher education was seriously burdened by an arbitrary criterion of ‘creamy layer’ and the unscientific ceiling of ‘50%’. Moreover, the major share of higher education was now with the private sector where in the P.A. Inamdar case (2005) the Supreme Court declared that the State could not impose its policy of reservations on the private managements. To overcome this a casteist verdict, Article 15(5) had to be introduced in the Indian 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 their formative stages. Evolution of private higher education with shared living experience of students representing all shades of social reality would have infused a certain element of radical potential in spaces of private higher education, something which public higher education also lacked at its formative stage. In this sense, Inamdar judgment is to private higher education what Champakam judgment was to public higher education.
Secondly, Article 15(5) is 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 the 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 the provision of 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 Tiwari case. The net result is that there is no provision for representation of Bahujan in private educational institutions of UP till date. Thus, the judicial policy of postponement of social justice continues deep into private higher education as well despite the constitutional mandate of distributive justice in all such fields.
The equality clause of the Indian constitution (Articles 14, 15 and 16) has tremendous scope for the expansion of distributive justice. If it is worked out with honesty and sincerity, a social revolution through constitutional means can indeed become a reality. But a judiciary without any representation of the Bahujan and in full control of Brahmin class is the biggest stumbling block. Let’s take the question of Bahujan representation in HCs and SC. Under Article 16(4), reservation of SC, ST, and OBC in the higher judiciary can become a reality through legislative or executive instrument to secure Bahaujan representation there. But the Supreme Court has been plotting for decades to thwart any such attempt in future through arguments that no reservation in super specialty courses or higher echelon of power would be allowed as it would impair the efficiency of administration under Article 335. In reality, 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. Thus, Article 16(4) read with Article 335 provides full scope for Bahujan representation in higher judiciary but we have to fight and defeat the Brahmin Supreme Court for the correct interpretation of constitutional provisions on social justice.
Dr. Ayaz Ahmad is the Head, Glocal Law School, Saharanpur-UP. He teaches Constitutional Law and studies judicial behavior from an Ambedkarite perspective.
Abhishek Juneja is a founder member of Ambedkar Reading Group Dehradun