Manish Tewari | What about merit... and equality of opportunity?

The Supreme Court's judgment in Janhit Abhiyan vs Union of India upheld the One Hundred and Third Amendment to the Constitution of India. Ten per cent reservation to economically weaker sections (EWS) thus received judicial approval.

The 103rd Constitutional Amendment revised Articles 15 and 16 by adding clauses 15(6) and 16(6) respectively, to provide up to 10 per cent reservation for  economically weaker sections (EWS). This 10 per cent excludes Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) who already have reservations of up to 49.5 per cent. The apex court, therefore, had three questions before it.

The first, whether the 103rd Amendment was in breach of the basic structure of the Constitution for introducing economic criteria as the basis of reservation. The second, whether including private unaided institutions within the purview of the 10 per cent quota violated the basic structure. The third, if excluding SCs, STs, and OBCs from scope of EWS reservation was constitutionally permissible.

Three of the five judges answered all these questions in the negative and upheld the impugned amendment. The majority, led by Justice Dinesh Maheshwari, held that a) economic criteria can be the sole basis of reservations; b) EWS reservation can be applied to private unaided institutions; c) that exclusion of socially and educationally backward classes from EWS reservation is not in breach of basic structure doctrine enunciated by Supreme Court in Re: Kesavananda Bharati.

Interestingly, the dissent written by Justice Ravindra Bhatt and joined by Chief Justice U.U. Lalit (since retired) agrees that economic criteria can be the sole basis of granting reservations. The dissent, however, holds the impugned amendment unconstitutional for excluding SCs, STs, and OBCs from its purview.  Justice Bhatt opined that such exclusion violates the principles of non-discrimination and non-exclusion, which are considered to be a part of the basic structure of the Constitution.

By explicitly recognising that poverty is a debilitating condition and can be the basis for reasonable classification for purposes of reservation, the apex court has broken new jurisprudential ground. This had been moot in Indian constitutional law for a while. Does our Constitution only envisage caste-based reservations? Can and should Parliament never take into account other criteria — such as poverty — in determining backwardness? A number of judgments, including M.R. Balaji 1963 Supp (1) SCR 439 and N.M. Thomas (1976) 2 SCC 310, noted that caste need not be the sole criterion for reservations. However, in Indira Sawhney 1992 Supp (2) SCC 217, Justice B.P Jeevan Reddy, writing the  majority opinion, held that income or property-holding cannot act as the sole basis for reservations.

The court in Janhit Abhiyan distinguishes these earlier precedents by holding, correctly, that economic criteria was not upheld in Indira Sawhney because the lex lata, qua Articles 15(1) and 16(1), did not envisage such a situation. But it does not follow that no such criteria could ever be enacted by the Parliament. The court in Indira Sawhney merely adjudged the law as it stood then. It could not and did not impose any restriction on introducing economic criteria lex ferenda. In other words, a future amendment such as the 103rd basing reservations on economic criteria alone was not precluded.

Second, there was another fundamental question that the Court dealt with: Does the EWS reservation fall foul of the Constitution for breaching the 50 per cent cap as enunciated in a catena of judgments of the Hon’ble Supreme Court?

The majority judgment holds that breaching the 50 per cent cap does not violate the basic structure because that cap is essentially only applicable to classes availing benefits under Articles 15(4) and 16(4).

This may not necessarily be a correct interpretation for the legal logic underpinning the 50 per cent cap has broader import. The various constitutional  amendments and  judicial pronouncements on affirmative action over the decades surely did not countenance a situation where merit is completely disregarded in education and employment. Such a view has the effect of being oppressive if there is excess reservation on those people who are considered in the ‘open’ or ‘general’ category. It leads to their unfair exclusion for no fault of theirs.

The future of the human civilisation for the foreseeable future will be shaped by cutting edge technological innovations putting humanity at the crossroads of a physical civilisation that evolved over the millennia and a virtual civilisation that is still being shaped. If the Internet of Things, advances in artificial intelligence, bio- and nano-technology, etc., have to be harnessed for larger societal good, it would require incentivising merit, excellence and first rate critical thinking.  Excess reservations have the potential of making these attributes a casualty if not collateral damage. They would also constitute an affirmative action overreach.

A ceiling of 50 per cent for reservations that balances the need to alleviate historical  discrimination and prejudice qua the technological transformations that we need to contend with is an eminently  sensible compromise.

In a catena of judgements the Supreme Court, from M.R. Balaji to T. Devadasan (1964) 4 SCR 680, and finally the nine-judge bench in Indira Sawhney, upheld the need for a cap of 50 per cent on reservations. Justice B.P Jeevan Reddy’s majority opinion in Indira Sawhney notes that 50 per cent “shall be the rule”. Seven out of the nine judges in Indira Sawhney agreed that an outer limit of 50 per cent was necessary to protect general merit candidates who would be unduly harmed if the limit is breached.

The majority in Janhit Abhiyan got around this postulate by holding that such precedents do not apply to an entirely different class like EWS created by a new constitutional amendment. The judgment, therefore, has completely diluted the 50 per cent rule. Justice Bhatt correctly noted in his dissent, the majority’s reasoning is bound to throw the Pandora’s box wide open. It would lead to a situation where every group claims reservations as a matter of right putting India on accelerated escalator of unbridled reservations. 

Dr B.R. Ambedkar, while debating Draft Article 10 in the Constituent Assembly that became Article 16, presciently noted that reservations are temporary and must be confined to a “minority of seats”. Only then could equal opportunity have any meaning under the Constitution. Citing an example, he stated that, suppose there were 70 per cent reserved seats and only 30 per cent were open to general competition, would this ever accord with the principle of equality of opportunity? “It cannot be in my judgment”, spake Dr Ambedkar. The question, therefore, is not reservation but how much? The 50 per cent rule, therefore, must be sacrosanct and inviolable given that it still awaits adjudication before a Constitution Bench of the Supreme Court in Re: Minor C.V. Gayathri.