IN DEFENCE OF LARGER INTERESTS

On December 21, 2005, the Lok Sabha hastily passed the 104th Constitution Amendment Act 2005, introducing a new clause into Article 15 to allow for reservations for schedule castes and scheduled tribes as well as other backward classes in private unaided educational institutions. Barring the Bharatiya Janata Party, which walked out on the exemption of minority institutions to provide reservations, this amendment secured support from all other political parties. The president finally gave assent to the amendment on January 20, 2006 after the prime minister satisfied him on several queries that he had raised.

This amendment will significantly alter reservations in educational institutions in at least three ways. First, it applies to primary, secondary and tertiary education, whereas presently reservation is mostly confined to the tertiary sector. Secondly, it extends reservation to OBCs over and above the existing practice of reservation for SCs and STs. Finally, and most significantly, it provides for reservation in non-minority private institutions which were exempted from this obligation by the apex court earlier this year in the Inamdar case.

The Indian Supreme Court and high courts enjoy an exceptional power of judicial review of constitutional amendments under the basic structure doctrine, and there is little doubt that in the weeks to come the courts will contend with the argument that this constitutional amendment fails basic structure review. No doubt, many strong normative and policy arguments can be made against this amendment. This article, however, tries to assess the constitutional question by exploring how the courts should assess the reservation amendment?s constitutional validity under the basic structure doctrine.

Initially set out in the Keshavananda case in 1973, basic structure review has evolved into an independent and distinct form of judicial review. The court in such cases examines whether the state action (here the reservation amendment), ?damages or destroys? the ?basic features? of the Constitution. I will explore two plausible arguments against the reservation amendment under basic structure review and conclude that both fail for different reasons.

The first argument against the amendment is that it destroys the basic feature of equality. The apex court has reiterated in the recent Mandal commission case (1994) when dealing with reservation in public employment that ?equality? is a basic feature of the Constitution. The Mandal commission ruling is not clear about the precise limits to state action that equality as a basic feature entails. As basic structure review operates at a permissive ?damage or destroy? standard, petitioners will have to show that the reservation amendment eviscerates the concept of equality in the Constitution.

As the Constitution adopts a concept of equality which permits special provisions for SC/ST and OBCs as valid derogations from a symmetrical equal treatment principle, this is a difficult argument to sustain. Such a low standard of scrutiny in basic structure review may seem incongruous, but considering that this is an exceptional power of judicial review where the court safeguards abstract constitutional values, the court?s deference to the legislature?s mode of setting out the equality principle is more appropriate. So basic structure review on equality grounds may fail to satisfy the ?damage or destroy? standard.

The second argument against the reservation amendment is that it fails to respect the division between the state sector and private sector. This argument would have to persuade the court to recognize a new basic feature: namely, the separation of state action from private action. It is clearly open to the court to do so as basic features are an open catalogue which may be expanded or modified through the common law method proceeding on a case-by-case basis. The right to associate freely [Article 19(1)(c)], read with the right to carry on any occupation, trade or business, or to practice any profession [Article 19(1)(g)] suggest that citizens enjoy the freedom to conduct their life as they choose to. This liberty is best illustrated by contrasting it with the constitutional obligations of the state to act within the fetters cast upon it by the fundamental rights of citizens (Article 13). These provisions read together suggest that the state/private distinction is a basic feature of our constitutional design. However, our Constitution does not maintain this distinction throughout. It clearly prohibits the practice of untouchability between private persons (Article 17) and imposes several fundamental duties on citizens, including the duty to abide by the Constitution (Article 51A (a)). The court has on previous occasions, as with sexual harassment, held that individual citizens may be required to respect the constitutional rights of citizens.

On balance, the court will assess whether the state/private distinction stands with democracy, equality and secularism as an inviolable constitutional principle or whether it is an important but malleable principle. In the last fifty years, the Supreme Court has interpreted the state action doctrine to include, and exclude, a wider range of public and private authorities against whom administrative law standards and rights guarantees are enforced. The most charitable understanding of this body of law would conclude that this area is in flux. In these circumstances, the court could refrain from anointing the state/private distinction as a basic feature of the Constitution.

Affirmative action politics in India is obsessed with quotas. Political parties vie with each other to expand quotas to newer arenas for an ever-expanding category of beneficiaries. It may be shown that this policy neither advances the interests of its beneficiaries nor that of the nation. But bad policy is not always ?bad? legally. One would therefore not be wrong to conclude that the 104th Constitution Amendment Act 2005 should survive the Supreme Court?s basic structure review and be declared constitutional.