The Supreme Court of India recently delivered a judgment in Janhit Abhiyan v. Union of India upholding the Constitution (103rd Amendment) Act, 2019, creating a regime for income-based affirmative action in state-run educational institutions and state-sponsored employment programs. This explainer will illuminate the historical underpinnings of India’s affirmative action scheme and explain its legal evolution.
Historical Underpinnings of Affirmative Action in India
The Indian Constitution, as it was originally enacted in 1950, consisted of Article 16(4) which gave the state the power to reserve “appointments or posts in favour of any backward class of citizens.” The purpose of this article is to establish a form of community reparation for groups that were economically and politically excluded. Caste is the primary mode of exclusion in India. As such, the article sought share state power with groups hitherto excluded from it. An equivalent of Article 16(4) was later added via the Constitution (1st Amendment) Act, 1951, which provided for affirmative action in education for “socially and educationally backward classes.”
Legal Development of Caste-Based Affirmative Action
Opposition to affirmative action programs came primarily from upper-caste groups that did not wish to share state power and educational opportunities with lower castes. The first case on the reservations scheme, State of Madras v. Champakam Dorairajan, concerned a petition by an upper-caste woman who argued for the invalidity of a policy reserving seats in educational institutions for lower castes. The Court held this policy unconstitutional because the Constitution did not empower the state to reserve seats in educational institutions. Following this judgment, Parliament amended the Constitution to provide for reservations in matters of education.
For a long time, it was believed that reservations were not consistent with formal equality in the law and, therefore, their scope was to be minimized. Thus, in M.R. Balaji v. State of Mysore, a case challenging the constitutionality of a policy that reserved 68% of the total seats in an educational institution for backward classes, the Court held that reservations are an exception to the rule of formal equality and therefore only a maximum of 50% of an institution’s seats can be reserved.
This principle of rule-exception governed the judicial mind until 1974, when the Court delivered its judgment in State of Kerala v. N.M. Thomas. In this case, the Court did away with the rule-exception logic, holding that the Constitution strives for a substantive vision of equality that recognizes structural group-based disadvantage. Thus, the decision recognized that such disadvantages may be remedied by the reservation scheme.
Indra Sawhney v. Union of India served as the next seminal judgment. The Central Government planned to expand the reservation scheme to caste groups that were not as deprived as the previous recipients of reservations but were still not as advanced as the upper castes. The Court upheld this policy while mandating that the least advantaged within this class must be prioritized for the reservation benefits and that the 50% limit on reservations cannot be breached. It also remarked that economic backwardness cannot be the sole criteria used to assess backwardness, but that such assessment must be completed in a holistic manner.
Constitutional Structure Challenges
The only way in which the validity of a constitutional amendment can be challenged is in a basic structure challenge, the contours of which were laid down in Kesavananda Bharati v. State of Kerala. The Supreme Court held that Parliament’s power to amend the Constitution is curtailed only by its basic structure, which is a set of abstract principles that constitute its unalterable core. These principles include equality, secularism, federalism, independence of the judiciary, and a democratic form of government. Thus, if Parliament amends the Constitution to replace the presently democratic form of government with a dictatorial one, the amendment can be struck down because it violates the basic structure doctrine.
Similar to the Bharati argument, Abhiyan also presented a basic structure claim. Abhiyan argued that the income-based reservations are violative of the basic structure. In addressing this challenge, the Court divided the question into three parts: first, whether the creation of a regime of solely income-based reservations is violative of the basic structure; second, whether the exclusion of the recipients of prior caste-based reservations from income-based reservations is violative of the basic structure; and third, whether the breach of the 50% cap on reservations via income-based reservations is violative of the basic structure.
In answering the first part, the Court acquiesced to the high deference that a basic structure test produces, holding that the general principle of equality is a part of the basic structure and is therefore not violated by the introduction of income-based affirmative action.
In answering the second part, the Court evaluated the implementation of income-based reservations. Not only do they create a class eligible to obtain such reservations, but they also exclude disadvantaged groups that were previously beneficiaries of caste-based reservations. On this basis, the new class receiving income-based reservations will inevitably consist of upper castes, removing lower castes from its domain. While the majority upheld the amendment on this ground, the dissenting opinion found the exclusion of lower castes from the scope of income-based reservations to be unconstitutional.
In answering the third part, the Court unanimously held that the 50% limit is not immutable. Parliament is entitled to set limits on reservations, even if there have been prior diverging judicial pronouncements. It also distinguished its earlier pronouncements that held 50% as the maximum limit, holding that those limits concerned caste-based reservations and not a limit on reservations in totality.
Conclusion
In Abhiyan, the Supreme Court upheld the income-based affirmative action program on the ground that it does not violate the basic structure of the Constitution. In doing so, the Court deferred to the basic structure test, which confers permanence to any principle deemed as part of the Constitution’s basic structure. The judgment has become mired in controversy in India, with political parties arguing that redressing group-based disadvantage lies at the heart of the Constitution and is a part of its basic structure. The Government had already pronounced the determining criteria for one’s eligibility for income-based reservations, which presently stands at a family income of Rs. 8 lakh (roughly $10,000) per annum. While income-based reservations were upheld legally, their political stay is being actively tested.
Kartik Kalra is a second-year law student at the National Law School of India University, Bengaluru.
