Indian Constitutional Law and Philosophy

Reservations, Equality and the Constitution – III: State of Kerala v

N.M. Thomas and the Transformation of Equality
 

5 years ago

At the beginning of 1976, the meaning of the 14-15-16 equality code seemed to be reasonably
well-settled. Twenty-six judges over an equal number of years had consistently affirmed that
affirmative action was constitutional by virtue of the existence of Articles 15(4) and 16(4), both
of which operated as exceptions to the equality and non-discrimination provisions of 15(1) and
16(1). Not just the outcomes, but judicial reasoning as well, as we have seen, relied upon a
colour-blind vision of equality, one that considered any kind of classification on the bases of
prohibited categories (race, religion, sex etc.) as presumptively unconstitutional. This idea, in
turn, was grounded upon the belief that in distributing a benefit or burden, government must treat
individuals as  individuals, and not as members of groups.

The lone dissenting voice had been Justice Subba Rao’s, in Devadasan. And in 1976, a seven-
judge bench, in State of Kerala v. N.M. Thomas, adopted that view in full, and in doing so,
entirely repudiated existing precedent. As a transformative decision, N.M. Thomas stands
alongside Kesavananda Bharati  and Menaka Gandhi in our constitutional history: it not only
changed the constitutional understanding of reservations, but in doing so, transformed the deep
foundations of the idea of equality that the Constitution commits us to.

In N.M. Thomas, a governmental order granted provisional promotions to members of Scheduled

Castes and Scheduled Tribes who did not have the requisite qualifications to be eligible for such
promotion, along with a two year grace period for them to gain such qualifications. This was
challenged. The key contention of the aggrieved parties was that the classification was clearly
void under Articles 16(1) and (2), and not covered by Article 16(4). Under existing precedent,
this ought to have been a simple case. If Article 16(4) did not apply, then special provisions for
SCs and STs clearly did violate Articles 16(1) and (2).

Not so, held the Court. In Paragraph 31, the Chief Justice Ray, writing the judgment of the Court,
held:

“The rule of differentiation is enacting laws differentiating between different persons or things
in different circumstances. The circumstances which govern one set of persons or objects may
not necessarily be the same as those governing another set of persons or objects so that the
question of unequal treatment does not really arise between persons governed by different
conditions and different sets of circumstances. “

Consequently:
“The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will
ensure equality of representation in the services for unrepresented classes  after satisfying the
basic needs of efficiency of administration.” (Para 37)

The Court thus holds that Article 16(1)’s conception of equality itself includes remedial action to
ensure due representation for hitherto excluded classes. No longer, then, is equal treatment to be
accorded to individuals; the Court adopts the group-subordination idea of equality, one that
locates the site of historical discrimination as the group, and seeks to remedy that by targeting
groups.

That said, the bar of 16(2) remained, which expressly listed caste as a prohibited basis of
classification. The Court’s answer was to accept that 16(2) would instantaneously void such
classification (Paragraph 37), but then to perform a sleight of hand (one that would be repeated
subsequently) by holding that Scheduled Castes were not the same as castes (under 16(2)), and
could fairly be called “backward classes” within the meaning of 16(4) (Para 43) This raises a
troubling issue for those situations where this sleight of hand will not be available to the Court.
What, for instance, can the Court say if Government wishes to make special provisions in
employment for women? 16(2) expressly prohibits classification on the basis of sex, and purely
on the logic of N.M. Thomas, 16(2) continues to operate as an absolute bar.

In any event, the fundamental shift in N.M. Thomas is this: 16(4) no longer operates as an
exception to 16(1), allowing the government limited powers to do what it would otherwise be
prohibited from doing by virtue of 16(1), but now exists as “one of the methods of achieving
equality embodied in Article 16(1).” (Paragraph 46) But this necessarily involves a shift in the
nature of equality itself, because until now, 16(1) and 16(4) were considered to embody differing
visions of equality: 16(1) was about individuals, and 16(4) – textually – about remedial measures
targeted at historically discriminated groups. And now it is that latter logic that
governs both 16(1) and 16(4).

On what basis does the Court deal with precedent in such cavalier fashion? The majority does
not say, and it is in Justice Mathew’s concurring judgment that we find an articulate defence of
the new principle of equality. Drawing upon sources as diverse as Brandeis and Laski, Justice
Mathew conceded that Article 16(1) was about equality for individuals – equality of opportunity.
But equality of opportunity, he argued, meant that in distributing a benefit or burden, the State
must set those criteria for selection that “people from all sections of the society have an equal
chance of satisfying them.” (Paragraph 84) To sharpen the idea, he drew upon Bernard Williams’
famous example: in a certain society, the most prestigious role is that of the warrior, which
requires great physical strength. Hitherto, recruitment for this role has been – formally – solely
from the wealthy/propertied classes. A reform movement succeeds in removing the formal
barrier in favour of equal competition. Nothing changes, however, because the rest of the
population is so undernourished by reasons of poverty, that they do not pass the physical
requirements of the recruitment test. In other words, the criteria for selection has been changed
from wealth to strength, but it so happens that – for obvious reasons – the poor also happen to be
weak.

For Justice Mathew, this is not equality of opportunity. According to him: “To give X and Y
equality of opportunity involves regarding their conditions, where curable, as themselves part of
what is done to X and Y and not part of X and Y themselves.  Their identity for this purpose does
not include their curable environment, which is itself unequal and a contributor of
inequality.” (Paragraph 87)

This is a crucial philosophical point (and the connection to Amartya Sen will be obvious to
everyone). Much turns upon what exactly “where curable” and “curable environment” mean, but
broadly, Justice Mathew’s point is that equality of opportunity makes no sense without taking
into account the structural conditions into which people are born and grow up in, and which
define, limit or otherwise profoundly affect the formulation and achievement of their goals.

Justice Mathew then reconciled his argument that Article 16(1) was about individual equality
with upholding group classification: any classification, he argued, must group together
individuals sharing certain characteristics. Categorization into Scheduled Castes/Tribes, then,
was no more than a convenient method for identifying individuals who did suffer from those
structural conditions that required affirmative action. (Paragraph 108) Crucially, for Justice
Mathew, Article 16(1) is not about group equality. It is about effective individual equality,
which is to be achieved by using the method of group-identification. The obvious problem with
this is the two-pronged evil of over-inclusiveness and under-inclusiveness. As soon as you
abandon separate analyses of each individual case for group-categorization, it is inevitable that
certain members of your chosen group will not be “backward” (over-inclusiveness), and certain
members who do not fall within the group will be “backward” (under-inclusiveness). This makes
the definition of the “group” absolutely critical, and as we shall see in subsequent cases, it is this
issue that would emerge as a political and constitutional battleground. In N.M. Thomas, however,
Justice Matthew was oddly unconcerned with this very real problem.

Justice Krishna Iyer, in his concurring opinion reiterated the shared vision of equality embodied
in Articles 16(1) and 16(4), and added a further ground for the argument by invoking Article 46,
of the Directive Principles. While the Directive Principles are, of course, unenforceable, Justice
Iyer argued that the interpretation of Articles 16(1) and 16(2) must be such that gives effect to
Article 46. In this way, by invoking the Directive Principles as background, structuring values,
helping us select which conception of equality Article 16 embodied (colour-blind, or group-
subordination, or something else), Justice Iyer provided the constitutionalgrounding to Justice
Mathew’s philosophical vision of equality.

Justice Fazl Ali, in his  concurrence, moved away from Justice Mathew’s individual-centric
notion in categoric terms. While adopting the same philosophy of equal opportunity, he held:

“Equality of opportunity would naturally mean a fair opportunity not only to one section or the
other but to all sections by removing the handicaps if a particular section of the society suffers
from the same.” (Paragraph 193)

This, as we have seen, is the classic statement of the group-subordination theory of equality. He
then adopted Justice Iyer’s argument about the interpretation of Articles 14 and 16 being
determined by the Directive Principles (Paragraph 200). Note, however, that Article
46 categorically refers to weaker “sections” of society. If, therefore, the interpretation of Article
16(1) is grounded in Article 46, then it cannot but be taken to be embodying the principle of
group-subordination.
The last concurring judgment was Justice Beg’s, but he only concurred in the judgment, siding
with the majority on the ground that the present case was covered by Article 16(4). On the
reasoning, he disagreed, sticking to the past interpretation of 16(4) remaining an exception to
16(1).

Justices Gupta and Khanna dissented. Justice Gupta held that Scheduled Castes were, indeed,
“castes” within the meaning of 16(2); and that any event, the manner of distinction was not one
that was permitted by 16(1). In a detailed dissent, Justice Khanna reaffirmed that 16(4) was an
exception, and the legitimating ground for reservations for SCs and STs was found in, and
limited to, 16(4). In particular, he held:

“There is no scope for spelling out such preferential treatment from the language of Clause (1)
of Article 16 because the language of that clause does not warrant any preference to any citizen
against another citizen.” (Paragraph 57)

Which, as we can see, if framed in explicitly individualistic language. Hammering the point
home, he observed in the very next paragraph:

“Equality of opportunity in matters of promotion must mean equality between members of the
same class of employees and not equality between members of separate, independent
classes.”  (Paragraph 58)

In other words, an express rejection of the group subordination principle. And to make it even
clearer, he went on to hold:

“What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as

individuals in matters relating to employment or appointment to any office under the
State.” (Paragraph 60)

N.M. Thomas,  thus, leaves us with a deeply divided Court, one in which each of the seven judges
wrote his own opinion, and came to deeply divergent conclusions on a number of issues. Let us
try to sum up:

(1) A majority of five judges concurred in the judgment, and two dissented

(2) A majority of four judges held that 16(4) is not an exception, but an “emphatic restatement”
of 16(1) – and thus, 16(1) itself permits reservations and preferential treatment

(3) Two judges – Fazl Ali and Krishna Iyer JJ – by invoking Article 46, specifically adopted the
group-subordination principle of equality in their interpretation of Article 16(1)

(4) Four judges (or five, depending on how one interprets Ray CJ’s judgment, which seems to
adopt both principles) – that is, Mathew and Beg JJ.’s majority opinions, and Khanna and Gupta
JJ.’s dissents – while coming to different conclusions, nonetheless maintained the individual-
centric view of Article 16(1)

In essence, therefore, while N.M. Thomas changes the idea of of equality under 16(1), a bare
majority upholds the deep philosophy of individual equality that forms the ultimate philosophical
basis of it. This, essentially, makes Justice Mathew’s opinion controlling. The point of the
Article 16 scheme – after Thomas, therefore – is not to achieve group equality qua groups, but to
achieve individual equality, and the use of groups is a convenient mechanism to achieve the end
goal of individual equality.  This, indeed, comports well with the founders’ vision (as we have
seen in previous posts) of an end-goal of a society in which class and other such markers become
entirely irrelevant. What Justice Mathew understands is that to achieve a colour-blind society,
you might need to take colour into account on the way, in order to ameliorate the continuing
negative effects of structural inequalities; the arguments are not novel. Feminists have regularly
argued that the end-goal of a society in which gender is irrelevant can only be achieved by taking
gender into account on the way, and bringing women to a position where formally making
gender irrelevant really means actually making gender irrelevant; and the same with race. What
is crucial to note is that none of these arguments lose their ultimate goal of emancipating the
individual. Classification is a means to an end, not an end in itself.

The distinction is important, and not just simply to understand what kind of equality our
Constitution commits us to, and whether it is a vision that we find inspiring and worth believing
in. It is also important because – as we shall see – debates about identifying beneficiary groups
(the Mandal Commission and beyond), the bitter fight over the “creamy layer”, and ultimately,
how far we are willing to go with reservations (for instance, over-inclusiveness and under-
inclusiveness aren’t issues at all if your goal is objective is group equality) – depend upon
whether our goal is to make groups  equal to each other (and thus, reinforce group identity), or to
make individuals equal to each other (and thus, ultimately, dissolve group identities). After N.M.
Thomas,  the latter view had an edge. In subsequent posts, we shall examine how it would fare in
the fraught and divided coming years.