Protective discrimination, layer by layer

Tahir Mahmood

Former Member, Law Commission

IN a federal structure, the state government cannot be denied the power to make laws to give preferential treatment to sub-categories within the reservation list.” Making this observation recently in an appeal against a decision of the Punjab and Haryana High Court, a Constitution Bench of the Supreme Court has dissented from a contrary decision on exactly the same issue given 15 years earlier by another Constitution Bench. It is a rare, though not unprecedented case, in which due to differences of opinion between two five-judge Benches of the court, the matter has to go to a larger Bench of seven or more judges.

Both these cases relate to reservation for the Scheduled Castes. The Constitution of India sanctions what has come to be known as ‘protective’ discrimination and ‘affirmative’ action in favour of the so-called ‘lower’ castes among certain chosen religious communities. The Constitution, when enforced in 1950, did not identify them and left it to the President of India (read the government of the time) to issue their first list. No sooner than the enforcement of the new governing charter of the country, a Constitution (Scheduled Castes) Order was promulgated, to be periodically updated by Parliament. In the course of time, a mechanism, involving state governments and special commissions, was evolved to assist Parliament in religiously undertaking this exercise.

There has been a trend in some states to create what is called ‘quota within quota’: preferential reservation in government jobs for certain underserved groups within the broader community of Scheduled Castes approved by Parliament. In 2005, the issue of the validity of such a provision made in Andhra Pradesh was contested by rival groups and had eventually reached the Supreme Court where a Constitution Bench had ruled that the state governments had no power to create sub-categories of Scheduled Castes for the purpose of reservation (EV Chinnaiah, 2005).

The very next year, the state legislature in Punjab enacted the Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 under which the ‘first preference’ in the matter of reservations for Scheduled Castes in public services was to be given to the Balmiki Hindus and Mazhabi Sikhs. The validity of this provision was challenged in the state high court, which in the light of the Chinnaiah ruling, declared it to be ultra vires of the Constitution.

A number of appeals were filed against the decision in the apex court. A Constitution Bench led by Justice Arun Mishra decided them in August this year in favour of the appellants. Also decided by a Constitution Bench, the 15-year old Chinnaiah ruling was, however, a hurdle in giving finality to the new opposite decision. Observing that “we cannot revisit Chinnaiah being the decision of a Bench of coordinate strength,” Justice Mishra requested the Chief Justice to constitute a larger Bench of seven or more judges for the final decision of the intricate constitutional issue. The matter, thus, is hanging in the air and, as the grapevine has it, the larger Bench is being constituted soon.

The legal position apart, the caste system remains the order of the day. The Constitution prohibits discrimination between citizens on the ground of religion, caste or gender, but leaves a wide room for it on each of the three grounds; and the judiciary has been lending its weight to it. As regards caste, in a case decided at about the same time as Chinnamiah, another Bench of the court had observed: “If you search for a person by the name Hindu, he is unidentifiable. He can be identified only on the basis of his caste — Brahmin, Kshatriya or Vaish, or of lower castes described in ancient India as Shudras” (Bal Patil, 2005).

Inter-caste marriages, prohibited by the traditional Hindu law, have been legalised by a number of laws enacted over eight decades — the Arya Marriage Validation Act 1937, the Hindu Marriage Disabilities Act 1946, and, finally, the Hindu Marriage Act 1955 — but remain a taboo and often give rise to problems connected with the bonanza of reservations for the Scheduled Castes.

Will a non-Scheduled Caste woman on her marriage to a Scheduled Caste man get the benefit of reservation? Will a non-Scheduled caste person adopted by a Scheduled Caste man or woman be entitled to it? These difficult questions have confronted the apex court, which has answered them differently in different cases.

Be that as it may, reservation for particular castes — envisaged by the Constitution as a transitory measure to be enforced till the society gets upgraded to an egalitarian state — has become a permanent fixture of the social fabric in India which politicians cannot even think of revisiting except at the cost of electoral debacles.

I have personally been dead set against all sorts of reservations and have a convinced opinion that merit alone should be the criterion, for both admissions to educational institutions and appointments to government posts. As the Law Member of the Ranganath Misra Commission, I had drafted its report which, endorsed by the full commission, had emphatically said that this would truly translate into action the provisions of the Constitution, ensuring equality before law and equal protection of laws to all citizens.

It, however, was, and remains, too late in the day to even dream of such an ideal situation.

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