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Reading A K Thakur vs Union of India: Legal Effect and Significance

The decision earlier this year of the Supreme Court in the case relating to reservations for the Other Backward Classes has generated substantial debate. Unfortunately, much of this debate has failed to subject the judgment to rigorous legal analysis. This paper attempts to fill the gap by first proposing a general methodology for a legal reading of a court judgment. It then provides a careful analysis of the A K Thakur judgment and shows that the ratio in the case is a narrow one with no radical departures from the Court's existing doctrine on reservation law and policy. The paper then assesses the Court's approach to the problems of identifying beneficiaries and suggests that the Court closely correlate the intrusiveness of affirmative action measures chosen and the moral justifications for the same. It concludes by addressing several policy proposals that aim to restructure affirmative action and suggest alternative frameworks of legal doctrine that will allow the Court to effectively respond to these demands for reform.

SPECIAL ARTICLEEconomic & Political Weekly EPW july 19, 200853ReadingA K Thakur vs Union of India: Legal Effect and SignificanceSudhir Krishnaswamy, Madhav KhoslaThe recent decision by a constitutional bench of the Supreme Court in A K Thakur vs UOI,1 upholding the constitutional amendment and union legislation which provides for reservations of Other Backward Classes (OBCs) in higher education, has sparked a great deal of intellectual exchange and political interest. Divergent views on the effective part of the decision and its likely impact have been expressed by various authors with equal passion and conviction. However, unfortunately much of this debate has failed to engage with the judgment in a rigorous legal manner.2 This essay seeks to fill this gap in the ongoing debate. We argue that the judgment is a signif-icant one in the context of affirmative action in higher education. However, the significance of the decision is for reasons different from those proposed so far. Too much of the debate so far has focused on parts of the judgment that are neither legally relevant nor binding.3 Hence, we begin this essay with a brief proposal in the next section of a method which should be adopted for a “legal reading” of the judgment.1 Reading a Court JudgmentThere are several reasons why one may choose to read the judgment of a court. Some readers may be concerned with the rhetoric of law including the forms of argument and the manner in which issues are framed. Others may be keen to document a history of ideas or institutions so that we may provide a fuller account of our intellectual, political or cultural inheritance gener-ally or in a particular area of law. We may at other times be concerned with the politics of a court of its decisions. The former would focus on the elements of intrigue and personal preferences which are inevitable ingredients in any collective decision-making process while the latter may be concerned with the effect of a judicial decision on the benefits and burdens borne by different individuals or groups. These various inquiries into the meaning of a judgment of a court would require us to adopt disciplinary modes and techniques particular to our chosen method and objective of analysis. Like the modes of reading illustrated above, any enquiry into the legal effect and significance of a court judgment must adopt the relevant legal techniques in order to identify with preci-sion the legal decision in any case, the reasoning and justification offered in support of this decision and its likely impact on the future decisions of the court. To the extent that other modes of reading and disciplinary enquiries seek to comment on the legal significance of a court decision, it is critical that the legal reading of the decision be carried out first with precision and accuracy. In this section we seek to first outline a few central elements in the legal reading of the court’s decision in A K Thakur, before we propose to identify the holding of the case in Section 3. Sudhir Krishnaswamy ( is with the National Law School of India University, Bangalore and Madhav Khosla ( is a student at the National Law School of India University, Bangalore. The authors are indebted to justice S B Sinha of the Supreme Court of India, Mohan Gopal of the National Judicial Academy and P P Rao, Senior Counsel, for the opportunity to present our views at the National Judicial Academy, Bhopal and the discussions which followed.The decision earlier this year of the Supreme Court in the case relating to reservations for the Other Backward Classes has generated substantial debate. Unfortunately, much of this debate has failed to subject the judgment to rigorous legal analysis. This paper attempts to fill the gap by first proposing a general methodology for a legal reading of a court judgment. It then provides a careful analysis of the A K Thakur judgment and shows that theratio in the case is a narrow one with no radical departures from the Court’s existing doctrine on reservation law and policy. The paper then assesses the Court’s approach to the problems of identifying beneficiaries and suggests that the Court closely correlate the intrusiveness of affirmative action measures chosen and the moral justifications for the same. It concludes by addressing several policy proposals that aim to restructure affirmative action and suggest alternative frameworks of legal doctrine that will allow the Court to effectively respond to these demands for reform.
SPECIAL ARTICLEjuly 19, 2008 EPW Economic & Political Weekly54The courts in most common law jurisdictions are organised in a hierarchical fashion and adopt the doctrine of precedent as the principle by which decisions of the various courts are integrated into a system. Article 141 of the Constitution incorporates this doctrine, and emphasises the binding character of the law declared by the Supreme Court in the Indian legal system. These rules of precedent organise the relationship between decisions of different courts as well as the decisions of different benches within the same court.4 The number of judges on the bench determines the binding character of judgment between different benches of judges sitting within the same court. Hence, decisions delivered by benches with a larger number of judges bind the decisions of benches with lower number of judges. The strength of a bench has a bearing not only on the legal effect of a decision on subsequent courts but also determines the room for decision-making that a bench of certain strength has in an area of law where benches of differing strengths have already expressed views on the matter before it. TheA K Thakurcase first came up last year before a two-judge bench of the Supreme Court comprising justice Pasayat and justice L S Panta. Acknowledging the constitutional significance of the issues involved the Court, guided by Article 145(3) of the Indian Constitution and Order 35 of the Supreme Court Rules, 1966, referred the matter to a larger constitutional bench.5 Article145(3) mandates that cases involving a substantial question of law must be heard by a minimum of five judges which makes up a “constitutional bench” so that the matter receives full consideration. The move of the two judge bench to refer the matter to a larger bench, and to grant a stay on the operation of the Act till the larger bench disposed of the petitions, was viewed by some observers as an attempt to overcome the binding effect of previ-ous Supreme Court decisions on the matters before it. Neverthe-less, the Supreme Court of five judges inA K Thakurwas bound by two of its own previous decisions: first, by an 11-judge bench in TMA Pai Foundation vs State of Karnataka on the regulation of higher education, especially private sector and minority educa-tional institutions,6 and secondly by a nine-judge bench in Indra Sawhney vs Union of India on the identification of OBCs, exclu-sion of the creamy layer exclusion, and the concept of substantive equality incorporated into Article 14.7The five-judge bench that heard and disposed of the petitions inA K Thakur upheld the validity of the Act and the constitu-tional amendment in four separate opinions: chief justice Balakrishnan, justice Raveendran and justice Bhandari expressed individual opinions while justice Pasayat delivered an opinion on his own behalf and justice Thakker. Divining the legally binding portion of a court’s decision where several opinions are expressed is often difficult and subject to considerable disagreement. The doctrine of precedent which deals with the legally binding portion of judgments relies on the distinction betweenratio decidendi andobiter dictum to demarcate the binding from the non-binding aspects of the judicial decision. Not everything said in a court’s judgment is legally binding. The ratio of a decision is the propositions of law and the fact and principle based reasons essential to support this decision. The obiterconsists of all other comments and observations that judges make either on an issue not in question before the court or not relevant to arrive at the court’s decision. The binding value of a decision is limited to its ratio and the case is not regarded as an authority with respect to itsobiter. Although, to a large extent, what is binding often gets clarified in subsequent decisions, we can take a preliminary view of the ratio inA K Thakur.The task of arriving at the ratioof a judgment is not one that is done with mathematical precision.8 It is an exercise in interpreta-tion9 where the reader must analyse the judgments carefully and test several hypotheses before one may conclude as to the ratio of the case. While this may be difficult even where the court speaks in a single voice, this is all the more so when there are a plurality of opinions when judges differ on their conclusions and the reasons for their decisions. A plurality opinion is said to exist when a bench comprising three or more judges expresses several views on the legal questions before it. The different opinions may constitute a “plurality” decision (where a majority agree on the result but differ on the reasons),10 a “false plurality” decision (where judges write separate opinions with little difference in both result and rationale),11 or even a “dual majority” decision (where one majority group agrees on the result and another majority group agrees on its reasons).12 Clarity on the ratio of a plurality opinion is relevant to any discussion of A K Thakuras much writing about the judgment seems to proceed as if every word of the judgment (or at least what is being regarded as the majority judgment) is to be regarded as itsratio and therefore legally binding. Theratio/obiter distinction is central to legal analysis. Further, it may be a useful distinction which may properly inform an analysis of the court’s decision from the perspective of political theory, cultural theory or sociology. In the next section we examine theratio or the propositions of law which may be said to flow from A K Thakur, and then we will examine the legal and policy implications of the decision in the concluding section.2 The Ratio inA K ThakurInA K Thakur, the Constitution (Ninety-Third) Amendment Act, 2005 (hereinafter referred to as the 2005 Amendment), and the Central Educational Institutions (Reservation in Admission) Act, 2006 (hereinafter referred to as the CEI Act) were under challenge. The former, inserted clause (5) in Article 15 of the Constitution, and read as follows:Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institu-tions referred to in Clause (1) of Article 30.A careful reading of Article 15(5) makes it clear that it goes beyond the existing special provisions allowed under Articles 15 and 16 as it allows for special provisions in both state and privately managed educational institutions irrespective of whether they received state aid. However the CEI Act, enacted by Parliament
SPECIAL ARTICLEEconomic & Political Weekly EPW july 19, 200855under Article 15(5), sought to enable greater access to higher education by providing for 27 per cent reservation for “Other Backward Classes” to central government controlled educational institutions and had no effect on privately managed education institutions.13 We may understand this exclusion of privately managed educational institutions by noting that the objects and reasons of the Act clarify that the purpose of the Act is to fulfil the state’s obligation under Article 4614 of the Constitution.15 The difference in the scope of application of Article 15(5) and the CEI Act has a significant bearing on the outcome of the case which will be explored below.In this section we set out to identify the key arguments before the Court inA K Thakurand conclusions reached by the several opinions in the case. We begin by presenting the conclusions of the Court on the key issues before it in a simplified tabular format (Table 1) which serves as a guide for the discussion in the rest of thesection.2.1 Validity of Article 15(5)The primary ground on which Article 15(5) was challenged was that it violates the basic structure doctrine.16 Rajeev Dhavan, one of the senior counsels appearing for the petitioners, argued that the use of “notwithstanding” in Articles 15(3), 15(4) and 15(5) could not be construed as “notwithstanding the declaration of equality principle”. Hence, it was argued that the 2005 Amend-ment introducing Article 15(5) damages and destroys the equal-ity principle which is a basic feature of the Constitution.17 A further ground for challenge was that Article 15(5) directly conflicts with Article 15(4) as both Articles exclude the remaining provisions of Article 15. Whereas Article 15(4) excludes Article 15 and Article 29(2), Article 15(5) excludes Article 15 and Article 19(1)(g).18 Hence, it was argued that Article 15(5) could not be read in conformity with the principles in Articles 14 and 15, and thus violated the basic feature of the equality.Observing that a Constitutional amendment which “moder-ately abridges or alters the equality principle or the principles under Article 19(1)(g)”,19 chief justice Balakrishnan concluded that Article 15(5), insofar as it dealt with state maintained and aided institutions, did not violate the basic structure of the Constitution. Justice Pasayat, justice Bhandari and justice Raveendran all concurred on this issue. This clarification on the standard of review that a court must apply in basic structure review may be understood as an elaboration of the “damage or destroy” standard which is central to the application of basic structure review to all forms of state action.On whether Article 15(5) was constitutional in light of Article 15(4), the Court noted that both provisions operated in different fields. The chief justice clarified the meaning of “nothing in this Article” in Article 15(5) by observing that the grounds in Article 15(1) alone would be included in the phrase, and that it would not exclude Article 15(4).20 While the Court may agree that Articles 15(4) and 15(5) can be harmoniously construed, they appear divided on this clarification of the chief justice. In contrast to the chief justice, justice Raveendran held that the phrase “Nothing in this article” in clauses (3), (4) and (5) of Article 15 referred to both clauses (1) and (2) of Article 15.21 Justice Pasayat merely stated that both provisions operated in different fields and was silent on what was excluded by the non-obstante clause at the start of Article 15(5).22 Justice Bhandari observed that as Article 15(5) was specific to admission in educational institutions, whereas Article 15(4) was general, Article 15(5) would neutralise 15 (4) with respect to reservations in educational institu-tions.23This largely textual analysis of these provisions is neither convincing nor is it properly directed. It remains uncon-vincing because although the Court held that Article 15(5) did not negate Article 15(4), there is no clear majority on the scope and ambit of the phrase “Nothing in this article” in Article 15(5). Further, basic structure review is about compliance with basic features. Surprisingly counsels and the Court conduct this discussion as if Article 15(5) had to be in conformity with other textual provisions of the Constitution. As basic structure review is a model of judicial review which ensures that state action does not damage or destroy basic features or values in the Constitution of India 1950 but not confined to particular expressions in the text of the Constitution, the Court seems to be misdirected in its analysis.2.2 Validity of 15(5): Private Unaided InstitutionsInTMA Pai Foundation, an 11-judge bench of the Supreme Court held that a private unaided educational institution has a funda-mental right under Article 19(1)(g) (freedom to practise any profession, or to carry on any trade or business) with respect to the establishment and administration of educational institutions. Disagreements relating to the ratioof the case led to the constitu-tion of a five-judge bench in Islamic Academy of Education entrusted with the task of clarifying the judgment inTMA Pai Foundation.24 Subsequently, a seven-judge bench was constituted in P A Inamdar to assess the clarification inIslamic Academy of Education and confirm the Ratio inTMA Pai Foundation.25 P A Inamdar made it abundantly clear that the law as per TMA Pai Foundation was that “neither can the policy of reservation be enforced by the State nor can any quota or percentage of Table 1: Opinions of Judges inA K ThakurJudge Art 15(5): State Art (15(5): Identification Creamy Layer Application of Periodic Review Maintained and Unaided of OBCs Exclusion Creamy Layer of the Act Aided Institutions Institutions Exclusion to SC/STChief justice Valid Question expressly Caste can be To be Not applicable Every 10 Balakrishnan left open used, but not excluded Years solely on the basis of casteJustice Pasayat Valid Question expressely Caste can be To be Silent on the issue, Every five (for himself and left open used, but not excluded thus question years justice Thakker) solely on the left open basis of casteJustice Bhandari Valid Unconstitutional Caste can be used, To be Question expressly Silent on the but not solely on excluded left open issue the basis of casteJustice Raveendran Valid Question expressly Caste can be used, To be Silent on the issue, Every 10 left open but not solely on excluded thus question left years the basis of caste open
SPECIAL ARTICLEjuly 19, 2008 EPW Economic & Political Weekly56Justice Bhandari’s application of basic structure review to the scope of Article 15(5) does not bind any future bench that will be called upon to decide this question. However, as it is the first view expressed by the Court on the question, it is likely that the Court will look to affirm or distinguish this view in future cases. Basic structure review is a form of judicial review where the Court reviews any form of state action and enquires into whether this state action damages or destroys a basic feature of the constitu-tion. However, justice Bhandari’s analysis inA K Thakur finds that Article 15(5) would violate Article 19(1)(g) which guarantees to all citizens the right to carry out any business or profession. It is not clear from the opinion, the extent to which Article 19(1)(g) has a bearing on the basic features of the Constitution and why Article 15(5) must comply with Article 19(1)(g) to be upheld by the Court. We had noted earlier that the Supreme Court has held inTMA Pai that Article 19(1)(g) prevents the state from creating reservation quotas in private unaided educational institutions. However, this proposition of law would need to be revised in the light of the introduction of Article 15(5). Hence, in order to hold reservation quotas in private unaided educational institutions unconstitutional the Court will need to find a new constitutional basis for this proposition: one that rests on the basic features of the Constitution such as equality. Hence, it seems that justice Bhandari’s conclusion on the constitutional validity of Article 15(5) as it applies to private unaided educational institutions is not supported by adequate reasons and it will fall to a future bench of the Supreme Court to revisit this question. 2.3 IdentificationofOBCsIn A K Thakur, the CEI Act was challenged, inter alia, on the ground that caste was the sole basis for the determination of social and economic backwardness. Article 15(5) allows the state to make special provisions for two kinds of groups: SC andST groups and “socially and educationally backward classes”. Section 2(g) of the CEI Act definesOBCs as “the class or classes of citizens who are socially and educationally backward, and are so determined by the central government”. The identification of theseOBCs has been carried out by the state under the provisions of Article 15(4) and Article 16(4) of the Constitution.On the issue of identification of OBCs, the Court inA K Thakur is bound by the holding inIndra Sawhney that caste could not be the sole determinant of backwardness, although it could be used as a starting point for determining backwardness.34 In light of this binding precedent, the Court had no option but to unani-mously hold that caste could not be the sole determinant of backwardness.35 Evaluating lists prepared by the National Commission for the Backward Classes and the State Commission for Backward Classes, the chief justice held that various criteria and indicators framed by the Mandal Commission had been taken into account, and social, educational and economic criteria have been considered. Consequently, the list of social and educa-tionally backward classes (SEBCs) has not used caste as the sole criteria, and as caste was one of several factors considered, and therefore Article 15(1) has not been violated.36Despite the unanimity on this issue, differing views on the importance of caste as a criterion provides us an interesting admissions be carved out to be appropriated by the state in a minority or non-minority unaided educational institution”.26 Hence, under Article 15(5) the State was enabled to regulate admission in private unaided institutions, something they were unable to do after the decision inTMA Pai Foundation and the subsequent cases clarifying it. It is important to note that although the Court inA K Thakurwas bound by the decision inTMA Pai Foundation, the change in the text of Article 15 by the introduc-tion of Article 15(5) may have altered the constitutional basis of the decision inTMA Pai.While the CEI Act does not apply to private unaided institu-tions, Article 15(5) does. However, the majority of the Court declined to pronounce on whether the application of Article 15(5) to private unaided institutions violated the basic structure of the Constitution. As no private unaided educational institution was arrayed as a petitioner inA K Thakur, four out of five judges found that a decision on this issue was unnecessary and would be properly made when appropriate parties were before it.27 Justice Bhandari, however, chose to delve into the issue. In an elaborate justification for doing so, he acknowledged that no unaided insti-tution had filed a petition. Yet he noted that as the best counsels in the country had appeared in the case he concluded that a brief from an unaided institution would have contributed little to the arguments already before the Court. Since the question of unaided institutions was likely to arise in the future, it was best, according to justice Bhandari, to resolve it now rather than go through the “entire exercise de novo”.28 In light of these “extra-ordinary facts”, 29 justice Bhandari examined the validity of Article 15(5) with respect to private unaided institutions and held that an imposition of reservation of this sort would violate Article 19(1)(g) and thus the basic structure doctrine, he severed the 2005 Amendment’s reference to unaided institutions.30 Two important issues arise out of justice Bhandari’s minority opinion. First, is the majority’s decision to avoid pronouncing on the application to private unaided educational institutions a political move? Secondly, does justice Bhandari’s conclusions on the validity of Article 15(5) as it applies to private unaided institu-tions a correct application of the basic structure doctrine? We will address each of these in turn. While some commentators have expressed surprise at the majority’s approach,31 generally courts may legitimately limit their decision to resolving particular disputes before them.32 However, the state action being challenged in this case is the amendment introducing Article 15(5) and the CEI Act. As the constitutionality of Article 15(5) is under review, the Court is called upon to pronounce on the scope of its application to private unaided educational institutions. To that extent, this is a proper issue for the Court to decide inA K Thakur. Moreover, the Supreme Court is often guilty of going beyond the issues in dispute in a particular case, and clubbing similar cases in a manner, that allows it to pronounce on constitutional issues generally and not confine itself to the facts of the case before it. In the light of this track record and the nature of legal challenge before it, the refusal to address the full scope of Article 15(5) is defensible only if it initiates a new rule of court discipline which will be followed in all cases hereafter.33
SPECIAL ARTICLEEconomic & Political Weekly EPW july 19, 200857insight into the perspective of the judges on the bench. Whereas the chief justice seemed to support the holding inIndra Sawhney and observed that “caste plays an important role in determining the backwardness of the individual”,37 justice Bhandari lamented the limited freedom he was provided on this issue: “Sawhney I has tied our hands…SawhneyI compels me to conclude that use of caste is valid…Exclusively economic criteria should be used. I urge the government that for a period of 10 years caste and other factors such as occupation/income/property holdings or similar measures of economic power may be taken into consideration and thereafter only economic criteria should prevail.”38 While these views of the bench have no impact on the ratio of the case, they may constitute a fault line along which the future judgments in the identification of OBCs may develop.We conclude the discussion on the identification of OBCs with the observations regarding the review of OBC lists by the Court and executive branch of government. AlthoughIndra Sawhney was binding on the use of caste as a means of identification of OBC, it did not authoritatively decide on the question of the extent to which the executive, or the Court, should review these lists. Despite the view of some commentators who have regarded the periodic review of the legislation a significant step through which the Court has sought to refine the government policy,39 theratio inA K Thakurrelating to the review of theCEI Act, and thus of the classes covered under it, remains unclear. While justice Pasayat calls for a review every five years, the chief justice and justice Raveendran call for a review every 10 years, and justice Bhandari expresses no view on the issue. While it may be argued that a majority of the Court approve the review of the CEI Act, it is unlikely that a future court will impose such a review by issuing a mandamus in such cases.2.4 Creamy Layer ExclusionThe exclusion of the “creamy layer” among the groups identified asOBC has been an important issue in Indian reservation policy since Indra Sawhney. Both Article 15(5) and the CEI Act are silent on the issue of the exclusion of the creamy layer and it was argued that this was not an essential constitutional requirement. However, the Court concluded that it is bound by the decision inIndra Sawhney and as chief justice Balakrishnan noted, “the majority in Indra Sawhney’s case upheld the exclu-sion of ‘creamy layer’ for the purpose of reservation in Article 16(4). Therefore, we are bound (by) the larger bench decision of this Court inIndra Sawhney’s case, and it cannot be said that the ‘creamy layer’ principle cannot be applied for identifying SEBCs.”40Despite unanimity on this issue, the Court was divided on the parameters to be used in excluding the creamy layer. The chief justice and justice Raveendran concurred that the office memorandum issued by the government of India, ministry of personnel, public grievances and pensions (department of personnel and training) on September 8, 1993 could be applied (itmaybe used).41 The chief justice further noted that the union and the state governments should issue appropriate guidelines to identify the “creamy layer”.42 Justice Bhandari, on the other hand, held that although the identification of the creamy layer should be left to the government, the aforementioned office memorandum was not comprehensive and ought to be periodi-cally revised.43 Justice Pasayat remained silent on the issue. Thus, while the chief justice and justice Raveendran seem to be satisfied with a set of criteria which results in a thin creamy layer, justice Bhandari clearly favours a set of criteria that would result in a much thicker creamy layer. However, regardless of individual views on how the creamy layer must be identified, all four opinions thought it best to defer to the government on this issue and provide no strict guidelines.2.5 Application of Creamy Layer Exclusion to SC/STArticle 15(5) and the CEI Act identify the beneficiaries of affirma-tive action to include SC andST communities and the socially and educationally backward classes. A K Thakurdealt with the identi-fication of these beneficiaries and the Court was confronted with the issue of whether the principle of creamy layer exclusion would be applicable to SC/ST reservation. In Indra Sawhney, the Supreme Court examined the issue of creamy layer exclusion and held it applicable specifically to OBCs. However inM Nagaraj, a five-judge bench of the Supreme Court, dealing with the power of the state to make reservations in promotions, extended the scope of creamy layer exclusion to reservations for another set of benefi-ciaries: namely,SC/STs under Article 16(4).44 InA K Thakur, the Court could not overrule Nagaraj but could have restricted its scope of application to the field of public employment. In A K Thakurthe Court could have explored whether Indra Sawhney is the last word on the exclusion of creamy layer to OBCs andSC/STs, and therefore to conclude that M Nagaraj wasper incuriamIndra Sawhney.The chief justice expressed the view that creamy layer exclu-sion was not a general principle of equality but only one used to identify backward classes and could not be applied to SC/STs.45 The remaining judges on the bench decided to play safe and did not enter into this potential controversy. While justice Bhandari expressly refused to enter into the question,46 justice Pasayat and justice Raveendran were both silent on this point.47 In any event, as the applicability of creamy layer exclusion to SC/STs was unnecessary to decide the constitutionality of Article 15(5) and theCEI Act, any view on this point would arguably have been regarded asobiter.2.6 ConclusionThe analysis in the section above reveals that the ratio in A K Thakuris a narrow one. First, that Article 15(5) does not damage or destroy the basic structure of the Constitution, and secondly that theCEI Act does not damage or destroy the basic structure of the Constitution or any other provision of the Consti-tution. The Court reiterates the Indra Sawhney position on the identification of OBCs and the exclusion of the creamy layer. However, it does not settle the issue of how the creamy layer would be identified. On both reservations in private unaided institutions and the application of creamy layer exclusion to SC/STs, the Court thought it best to remain silent. We have suggested in the first section of this essay that a careful legal analysis of the A K Thakuropinions would allow us
SPECIAL ARTICLEjuly 19, 2008 EPW Economic & Political Weekly58to accurately identify the ratio of the case, and thereafter to analyse its significance. In this section we have sought to do this and we are now in a position to assess the significance of the Court’s decision using different frames of analysis in the section below. 3 The Significance ofA K ThakurIn the section above we noted that A K Thakur is a judgment of great legal significance insofar as it upholds the extension of reser-vation quotas into new arenas, but this significance does not arise from any radical departure from the Court’s previous doctrine or positions on these subjects. To the extent that two judges call for periodic review of the CEI Act every 10 years, two judges call for a review every five years, and one judge is silent onthe issue,48 the decision may give rise to litigation which may alter the present doctrine of the Court in the future. Moreover, as the majority maintains silence on the applicability of creamy layer exclusion to SC/STs, the A K Thakur judgment is as significant for its omissions. In the rest of this section, we highlight significant analytical themes in A K Thakur and propose alternative frameworks of doctrine and policy which will allow the Court to go beyond its present moorings in affirmative action policy.The first issue we turn to is the assumption of the equivalence at the policy, doctrinal and moral level of affirmative action in education and public employment in affirmative action cases including A K Thakur. While the Court increasingly calls for carefully structured and empirically justifiable affirmative action policy in education and public employment, the trend of equating provisions of Articles 15 and 16 which began withSrimathi Champakam Dorairajan, and has also continued till today.49 This doctrinal approach prevents the Court and executive to consider affirmative action in different fields in a disaggregated fashion. Any method of identification of beneficiaries which uses groups50 as the unit of identification is bound to suffer from problems of over-inclusion and under-inclusion when assessed at the individual level. While policy mechanisms to identify benefi-ciaries may never fully satisfy rigorous empirical scrutiny, being sensitive to the differences in the OBC andSEBC categories will be very useful. As the legislature and executive extend the scope of affirmative action to scanty prized resources such as private unaided educational institutions, the Court must exert greater scrutiny over the manner in which beneficiaries are identified. It is for this reason that the manner of identification of groups becomes particularly important. There are sufficient textual reasons to consider Articles 15(3), 15(4) and 15(5) and Article 16(4) to operate in different fields. Articles 15(3) and 15(4) allow the state to make special provisions in any field though they have been used largely in the context of education. Article 15(5) and Article 16(4) are specifically focused on higher education and public employment respectively. There are different moral and policy justifications for affirmative action in these different fields. While in some cases affirmative action may be used to achieve equality of opportunity, in other cases it may be driven by considerations for diversity or social inclusion.51 Justifications such as diversity may go a long way in supporting affirmative action in education, but find limited place in the arguments for affirmative action in public employment. Moreover, Article 353 which deals with efficiency of public administration holds relevance for assessing affirmative action in public employment but has no relationship with education. Similarly, Articles 29(2), 21A, and 30 are important while examining affirm-ative action in education, but have no connection with public employment. The lumping of the social policy considerations in the labour market with the education sector prevents the tailor-ing of appropriate policy mechanisms to achieve stated outcomes. If the Court is keen to increase the standard of review over affirm-ative action policy to show that it achieves professed outcomes, then it is critical to develop different doctrines under these differ-ent articles of the Constitution. By engaging with distinct justifi-cations for affirmative action in both public employment and education, the Court would give itself opportunities to develop new doctrine for each sphere.So far as the argument above on the justification for affirma-tive action in different sectors is successful, it follows that the beneficiaries for each sector may be distinct. While the clauses of Article 15 seek to benefit the SC/STs as well as “socially and educa-tionally” backward classes, Article 16 seeks to benefitSC/STs and “Other Backward Classes”. Hence, the constitutional text supports the view that these two categories of beneficiaries may indeed be different and by using this distinction the government may identify affirmative action beneficiaries in a manner that pays due attention to the policy objectives that are sought to be met. Moreover the criterion of access to these valuable and scarce public resources may be moulded through relevant principles of merit52 and any other contending principles so that the category of beneficiaries identified would be appropriate for the affirmative action measure. In order to avoid the blurring of the OBC and SEBC categories, the Court must give greater meaning to the phrases employed in Articles 15(3), 15(4), 15(5) and 16(4) and see these as distinct categories. This does not mean that these new categories of beneficiaries should exclude caste as a criterion: they should take caste into consideration but may allocate different weights to it. Another distinction between categories of beneficiaries that is important to emphasise is betweenOBCs and SEBCs on the one hand andSC/STs on the other. The moral case for SC/ST reserva-tion was made at the height of India’s freedom struggle during the Communal Award in 1932 and the subsequent Poona Pact,53 and entrenched in the Constitution of India 1950. The moral case for OBC andSEBC reservation is being made in very different historical circumstances in independent India and has often required the amendment of the 1950 Constitution. While the argument forSC/ST reservation is often seen as being constitu-tionally unassailable, the argument for OBC andSEBC reservation is viewed with more suspicion. For this reason, there are strategic reasons to conflate the two categories and much of the political and legal discourse around these categories without distinguish-ing between them. For example, the identity of groups to be included in the OBC and SEBC category was loosely identified in Indra Sawhney as being those castes which were closest to SC/STs and were almost accidentally excluded in the initial listing of the SCs and STs. But the practice of identification adopted by union and state governments suggests that a much larger range of castes
SPECIAL ARTICLEEconomic & Political Weekly EPW july 19, 200859are included among the OBCs. The Court has responded to these problems of OBC and SEBC beneficiary identification by introduc-ing the creamy layer concept despite some resistance from the governments. This creamy layer exclusion has been extended to apply to the SC/ST category of beneficiaries with little or no argument. Hence, it is critical to treat these two categories of beneficiaries distinctly in terms of the moral and constitutional justification and the appropriate policy designinorder to create aneffective affirmative action policy which meets its stated outcomes. A greater engagement with the political and moral justification for OBC reservation may require more than the judicial scrutiny of groups included under the OBC category. The judiciary may also be concerned with the manner and form of affirmative action adopted for these beneficiaries. Hence, while bothOBCs and SC/STs both may require affirmative action measures, these may not require quotas in every instance. One needs to more closely calibrate the intrusiveness of affirmative action measures chosen and the moral justifications for the same. IfSC/STs have the strongest moral case for quotas in reservation, thenOBCs have, at present, a relevant case for affirmative action which could use other mechanisms such as a system of institutionalised prefer-ences falling short of quotas. There is no moral, political or legal necessity to insist on the equivalence of SC/ST andOBC affirma-tive action policy. Hence, there is an urgent need to revisit the design of affirmative action policy which responds to the moral and policy arguments for each of these beneficiaries. Moreover, this distinction betweenSCs andSTs and the OBCs categories is essential when we consider the scope of the creamy layer exclusion. Creamy layer exclusion is an attempt to reconcile beneficiary identification at group levels and individual based class criteria in order to enhance the accuracy of the beneficiary identification. The Court is also concerned with ensuring that the negative impact of a quota-based reservation on similarly situated individuals. Unfortunately, the metaphor of “creamy layer” is not backed by good social scientific evidence. While the Court and advocates of creamy layer exclusion rightly insist on a high degree of social scientific evidence to be used for the identification of OBCs, there is not similar enquiry into the existence of a creamy layer. InA K Thakur and other cases,the Court has expressed some scepticism about the use of government orders used to identify the creamy layer. However, the Court has not insisted that government must develop a multi-criteria index, such as the one proposed by Deshpande and Yadav,54 which offers a far more sophisticated policy design that merits serious consideration.We will conclude the discussion in this section by taking note of two developments in A K Thakur which though not strictly related to affirmative action may have a significant impact on the develop-ment of the doctrine of the Court. In a recent decision of the Court in Anuj Garg, a two-judge of the Supreme Court applied the strict scrutiny test to Article 14 holding that “protective discrimination” legislations must be assessed with reference to whether inter-ferences with personal freedom are (a) justified in principle, and (b) appropriate in measure.55 This concept of tiers of scrutiny, borrowed from the US, supplements the rationality test ordinarily employed in Article 14 cases. The “tiers of scrutiny” approach is relevant to two areas of Court doctrine on equality: the assessment of paternalistic legislation which seeks to protect discriminated groups but may in fact disadvantage these groups. Secondly, this approach would be useful for the Court to widen the range of “suspect classifications” beyond those listed in Articles 15 and 16. The constitutional cases before various high courts on discri-mination on the basis of sexual orientation and disability would be cases where a strict scrutiny approach would be useful. In A K Thakur the “tiers of scrutiny” approach was rejected by a majority in the Court, without any reference to the decision in Anuj Garg. The concern of the Court was that adopting the “tiers of scrutiny” approach would require the Court to adopt the attitude of the US Supreme Court and invalidate caste-based affirmative action programmes in all cases. This concern was misplaced as the US Supreme Court’s rejection of certain race-based affirmative action programmes rest only in part on the “tiers of scrutiny” approach. The reasoning of the US Court to a larger extent depends on the adoption of a symmetric anti-discrimination principle where the Court is likely to strike down any race-based state action as it disables itself from an enquiry into whether this discrimina-tion is benign or invidious – in other words whether it imposes benefits or burdens on the black community. The Indian Consti-tution in Articles 15(3), 15(4), 15(5) and 16(4) adopts an asymmetric discrimination principle and expressly allows the state to make special provisions to benefit specific categories of beneficiaries. To that extent there is no scope for a symmetric discrimination principle under the Indian Constitution. So it may well be that the court has lost the opportunity to develop its equality jurisprudence to detriment of issues likely to come up before the Court in the near future.Finally, we must take note of some aspects of A K Thakur’s application of the basic structure doctrine. In the last few years, the Supreme Court has developed this doctrine in a haphazard and contradictory fashion. InKuldip Nayar, the Supreme Court ignored previous precedent and restricted the scope of the basic structure doctrine by holding this inapplicable to statues. The Court held that the unconstitutionality of a statute could be challenged only on two grounds: lack of legislative competence, and violation of fundamental rights or any provision of the Constitution.56 InM Nagaraj, the Court substituted the “damage or destroy” standard and instituted a new standard of a “width” and “identity” test.57 InCoelho, it was held that the “rights test and the “essence of right test” are both applicable standards with respect to the basic structure doctrine.58 While the former “damage or destroy” yardstick examined the possible erasure of basic features or values from the Constitution, the latter “width” and “identity” test studies the impact of the impugned measure on the identity of the Constitution and the fundamental rights in particular. The chief justice inA K Thakur applies the width and identity test and concludes that while the fundamental rights have been altered by the constitutional amendment this is in conformity with the Constitution’s basic structure as it adheres to the broader principle of equality.59 It is not clear that this rights and impact test is an advance over the damage or destroy stand-ard developed by the Court inIndira Gandhi vs Raj Narain60 and Kihoto Hollohan vs Zachilhu.61 WhileA K Thakurdoes not elaborate on the benefits of the new standard of review it does
SPECIAL ARTICLEjuly 19, 2008 EPW Economic & Political Weekly60not abandon this standard either. So this question will be left to a future bench to clarify and it is unfortunate thatA K Thakurdid not resolve this important area of judicial doctrine.4 ConclusionsThere has been an outpouring of editorial and political comment on the A K Thakurdecision. This essay has argued that commen-tary on the case would benefit from closer analysis of the judicial opinions in the case to reveal the key holdings of the plurality opinion of the Court. Further, we have argued that while there is a need to engage with the constitutional text and the Court’s doctrine, it is essential for us to go beyond present frameworks in which affirmative action legal discourse is conducted in India. In this essay we have proposed several methods in which this may be done.We conclude this essay by pointing out justice Bhandari’s affirmation of the obligation of the State under Article 21A to provide free and compulsory education to all children from the age of six to 14 years. Justice Bhandari went even further to direct the union of India to set a time-limit within six months within which the article would be implemented.62 It is impor-tant to highlight justice Bhandari’s view that compulsory primary education is a complementary, and often neglected, policy to make affirmative action policy in higher education meaningful. The commitment of the A K Thakur bench to the pursuit of a wider conception of social justice may serve as an important corrective to the excessive focus on affirmative action schemes as the only method of achieving social justice in the political discourse in India. Notes 1 A K Thakur vs Union of India and others, Supreme Court of India, April 10, 2008 (unreported).2 See K Kannabiran, ‘Road Map for Reservation in Higher Education’, The Hindu, April 18, 2008; P B Mehta, ‘It’s a Landmark’, The Indian Express, April 11, 2008; R Sachar, ‘The Quota Verdict: Creamy Layer Exclusion Is Right’, The Tribune, April 19, 2008; T T Ram Mohan, ‘The Big Picture’, The Economic Times, April 17, 2008 and V Venkatesan, ‘Equity in Education’, 25, Frontline, May 9, 2008, pp 4-12. 3 See for example, H Sethi, ‘Think Beyond Quotas’, Daily News & Analysis, April 15, 2008, for a view that the judgment held that the OBC reservation measure is inapplicable to private unaided institu-tions. For one of the few notes on the case that has correctly posited that the decision offers very little that is new, see editorial, ‘After the OBC Judgment’, Economic & Political Weekly, 2008, Vol 43, p 5. 4 For a general discussion on the doctrine of precedent, see R Cross and J W Harris, Precedent in English Law, Clarendon Press, Oxford, 1991, pp 3-38. 5 (2007): 4 SCC 397. 6 TMA Pai Foundation vs State of Karnataka (2002) 8 SCC, 481. 7 Indra Sawhney vs Union of India, 1992, Supp (3), SCC, p 217.8 For a detailed examination on this issue, see A L Goodhart, ‘Determining the Ratio Decidendi of a Case’, Yale Law Journal, (1930) 40, p 161. 9 For a further discussion on how legal practice is an exercise in interpretation it is useful to study the comparisons which Dworkin draws between law and literature. See R Dworkin, A Matter of Princi-ple, Clarendon Press, Oxford, 1985, pp 146-66.10 For an excellent analysis of the binding value of plurality decisions, see M A Thurmon, ‘When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions’, Duke Law Journal, 1992, 42, p 419.11 See M A Thurmon, note 10 at p 419; Comment, ‘Supreme Court No-Clear Majority Decisions: A Study in State Decisis’, University of Chicago Law Review (1956), 24,99.12 SeeM A Thurmon, note 12 at p 419; Note, ‘Plurality Decisions and Judicial Decision-making’,Harvard Law Review (1981) 94, 1127.13 For the definition of Central Educational Institu-tion, see Section 2(d), CEI Act.14 As per Article 46, it is the mandate of the state to promote the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections of society. 15 Statement of Objects and Reasons, CEI Act.16 The basic structure doctrine, propounded by the Supreme Court inKesavananda vs State of Kerala (1973) 4 Supreme Court Cases 225, places substan-tive and procedural limits on the amending process provided in the Constitution. For an authoritative account of the ratio inKesavananda, see R Dhavan, Supreme Court and Parliamentary Sovereignty (Sterling Publishers, New Delhi, 1976). For a brief overview of why the Article 15(5) survives the basic structure challenge, see S Krishnaswamy, ‘In Defence of Larger Interests’, The Telegraph, January 31, 2006.17 A K Thakur, note 1 at paragraphs 28, 30 (Balakrishnan C J).18 There were other grounds of challenge as well to the validity of Article 15(5). For example, whether the exclusion of minority educational institutions from Article 15(5) violated Article 14 of Constitu-tion? This paper has, however, concentrated only on the two principal grounds of challenge, namely those concerning the basic structure and Article 15(4).19 A K Thakur, note 1at paragraph 95 (Balakrishnan CJ).20 A K Thakur, note 1at paragraph 100 (Balakrishnan CJ).21 A K Thakur, note 1at paragraph 3 (Raveendran J).22 A K Thakur, note 1at paragraph 106 (Pasayat J).23 A K Thakur, note 1at paragraph 256 (Bhandari J).24 Islamic Academy of Education vs State of Karnataka (2003) 6 SCC 697 at paragraph 1 (Khare CJ).25 P A Inamdar vs State of Maharashtra (2005) 6 SCC 537 at paragraphs 1-5 (Lahoti C J).26 P A Inamdar, note 25 at paragraph 132 (Lahoti CJ).27 A K Thakur, note 1 at paragraph 79 (Balakrishnan CJ), paragraph 138 (Pasayat J), paragraph 1 (Raveendran).28 A K Thakur, note 1 at paragraph 133 (Bhandari J).29 A K Thakur, note 1 at paragraph 133 (Bhandari J).30 A K Thakur, note 1at paragraph 278 (Bhandari J).31 See for example,P B Mehta, note 2.32 As the current chief justice of the US, John G Roberts Jr, noted at a lecture at Georgetown University: “If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case”. See the Associated Press, ‘Chief Justice Says His Goal Is More Consensus on Court’, New York Times, May 22, 2006, online: Another noteworthy instance of judicial discipline in this case was the Court’s decision not to comment and present views on the relevant parliamentary debates. SeeA K Thakur, note 1at paragraph 10 (Pasayat J).34 A K Thakur, note 1at paragraph 12 (Raveendran J), paragraph 129 (Pasayat J).35 A K Thakur, note 1 at paragraph 1 (Raveendran J).36 A K Thakur, note 1, pp 140-142 (Balakrishnan CJ).37 A K Thakur, note 1 at paragraph 123 (Balakrishnan CJ).38 A K Thakur, note 1 at paragraphs 251, 278, (Bhandari J).39 See for example,P B Mehta, note 2.40 A K Thakur, note 1at paragraph 150 (Balakrishnan C J), paragraphs 61, 138 (Pasayat J), paragraph 30 (Bhandari J).41 A K Thakur, note 1at paragraph 193 (Balakrishnan CJ), paragraph 1 (Raveendran J).42 A K Thakur, note 1at paragraph 154 (Balakrish-nan CJ).43 A K Thakur, note 1, paragraphs 54-56 (Bhandari J).44 M Nagaraj vs Union of India (2006) 8 SCC 212, at paragraphs 121-123 (Kapadia J).45 A K Thakur, note 1 at paragraph161 (Balakrishnan CJ).46 A K Thakur, note 1at paragraph 34 (Bhandari J).47 Although justice Pasayat did note that the instant case did not concern SC/STs. See A K Thakur, note 1 at paragraph59 (Pasayat J).48 A K Thakur, note 1 at paragraph 187 (Balakrishnan CJ), paragraph 138 (Pasayat J), paragraph 1 (Raveendran J).49 State of Madras vs Srimathi Champakam Doraira-jan, AIR 1951, SC, 226.50 In this context, it may be useful to refer to the relationship between groups, the equal protection clause, and the anti-discrimination principle. See OM Fiss, ‘Groups and the Equal Protection Clause’, (1976) 5,Philosophy and Public Affairs 107.51 For a further study of the goals of anti-discrimi-nation laws, see H Collins, ‘Social Inclusion: A Better Approach to Equality Issues?’,Transna-tional Law and Contemporary Problems (2005) 14, pp 908-17. See also H Collins, ‘Discrimination, Equality, and Social Inclusion’,Modern Law Review (2003), 66, p 16. 52 In studying criteria, it is useful to examine the relationship between merit and affirmative action. See, C McCrudden, ‘Merit Principles’, Oxford Journal of Legal Studies (1998), 18, p 543.53The Communal Award regarded “Depressed Classes” as a distinct minority community which were entitled to separate electorates thereby separating them from the remaining Hindus. Result-ing in significant opposition, an agreement in the form of the Poona Pact was arrived that in which the concept of separate electorates was done away with while the reservation for Depressed Classes in provincial legislatures was increased. See B Chandra et al, India’s Struggle for Independence, Penguin Books, New Delhi, 1988, pp 290-91.54 S Deshpande and Y Yadav, ‘Redesigning Affir-mative Action’,Economic & Political Weekly, (2006), 41, p 2419.55 Anuj Garg vs Hostel Association of India (2008), 3 SCC, at paragraphs 46-52 (Sinha J).56 Kuldip Nayar vs Union of India (2006), 7 SCC 1 at paragraphs 90-108 (Sabharwal CJ).57 M Nagaraj vs Union of India, note 44 at paragraphs 101-102 (Kapadia J).58 I R Coelho vs State of Tamil Nadu (2007), 2 SCC 1 at paragraph 76 (Sabharwal CJ).59 A K Thakur, note 1 at paragraph 93 (Balakrishnan CJ).60 1975 Supp (1), SCC 1.61 AIR 1993 SC 412.62 A K Thakur, note 1 at paragraph 10 (Bhandari J).

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