From the constituent assembly to the Indra Sawhney case, tracing the debate on economic reservations

On 12 January, the Indian constitution was amended through the 103rd Constitutional Amendment to introduce a reservation of up to 10 percent in government jobs and educational institutions for “economically weaker sections” of citizens. The pool of eligible citizens excludes those already covered by Articles 15(4) and (5), and Article 16(4) of the constitution—which pertain to reservations for the Scheduled Castes, Scheduled Tribes and Other Backward Classes. In effect, this reservation will only apply to persons from the upper castes. As opposed to the existing reservations that focus on remedying the disadvantage of socially marginalised groups, the 10-percent quota focuses solely on individual economic disadvantage, and will apply only to upper-caste families who earn an annual income of less than Rs 8 lakh.

Shortly after its introduction, the anti-reservation non-governmental organisation Youth for Equality, the lawyers Reepak Kansal and Pawan, and the political commentator Tehseen Poonawalla, filed separate petitions challenging the amendment in the Supreme Court. The petitions questioned the use of economic criteria as the sole basis for reservation, excluding persons in the SC, ST and OBC categories. The court decided to hear the petitions but declined to stay the operation of the amendment. On 28 March, the apex court will hear arguments on whether the petitions need to be referred to a constitution bench comprising five judges.

The arguments for and against reservations based on economic criteria are not new, and find their oldest articulations in the constituent assembly debates. However, the constituent assembly never considered a disadvantage defined solely in economic terms as a criterion for reservation. Even those members who supported an economic basis for reservations did so for groups that they considered socially disadvantaged or backward in some other respect. Following the adoption of the constitution, several government-appointed commissions have deliberated on the nature of reservations in India.

The constituent assembly—founded in 1946 to frame the constitution of independent India—was concerned with reservations as a political safeguard for securing representation of minorities. The uncontested overarching principle guiding the debates was that every section of the population, whether a “numerical or political minority,” ought to have “proper representation and a proper voice in the administration of the country.” The house only differed on how to realise such representation.

The Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas—a committee appointed by the constituent assembly—recommended reservation for Scheduled Castes in the legislatures, on 30 August 1947, and reaffirmed its view before the assembly when the question arose again in May 1949. The proposal was then put to the constituent assembly. S Nagappa, an elected member from the Madras state legislative assembly and a prominent participant in the Quit India movement, argued in support of reservations. He said that Scheduled Castes were “an economic, political and social minority,” for whom representation ought to be secured through reservations. “Even today, here and now, I am prepared for the abolition of the reservation, provided every Harijan family gets ten acres of wet land, twenty acres of dry land and all the children of Harijans are educated, free of cost, up to the university course and given one-fifth of the key posts either in the civilian departments or in the military departments,” he said.

Mohan Lal Gautam, elected from the United Provinces assembly, interjected that every Brahmin would be willing to swap places with a “Harijan” if they could have such land. In response, Nagappa argued that a “Hindu” could not just convert into a “Harijan” unless one is prepared to also “scavenge and sweep for others.” This stigma of untouchability linked with the “division of labourers”—a term used by BR Ambedkar—–leading to lifelong social, educational and economic disadvantage, was the core of the case for reservations for Scheduled Castes in the constituent assembly. That reservations are meant to achieve representation of socially marginalised classes was also the premise of the constituent assembly debates on reservations in the services of the state.

Some opponents of reservation argued against the choice of reservations as a remedy for social disadvantage, but not the category of beneficiaries. HC Mookherjee, the chair of the Sub-Committee on Minorities, opined that the appropriate remedy for backward groups was economic but not political safeguards. ZH Lari, an elected member of the United Provinces Legislative Assembly from the Muslim League, argued that the representation of religious minorities and Scheduled Castes ought to be secured through the system of proportionate representation—by counting cumulative votes in multi-member constituencies—and not through reservation.

There were two voices opposed to the classification of beneficiaries on the basis of caste. Mahavir Tyagi, an elected member from the United Provinces, and Jerome D’Souza, a professor and theologian from Madras, suggested using other markers of social disadvantage. Tyagi, a vocal proponent of class-based reservations, argued that minorities should be categorised on economic criteria, based on “jobs” that do not earn enough to make a living. “I do not believe in the minorities on community basis, but minorities must exist on economic basis, on political basis and on an ideological basis and those minorities must have protection,” Tyagi said. “I would suggest that in the place of the Scheduled Caste, the landless labourers, the cobblers or those persons who do similar jobs and who do not get enough to live, should be given special reservations … Let cobblers, washermen and similar other classes send their representatives through reservations because they are the ones who do not really get any representation.” Tyagi’s case for economic reservations differs from the 103rd Constitutional Amendment, because he did not rely on income or wealth as indicators of disadvantage. He was focused on occupational communities and classes of labourers.

D’Souza argued that a person’s caste or religion should not be the exclusive basis for reservations. Instead, he stated, reservation ought to be provided based on “individual deficiencies and need, bearing, no doubt in mind the social background.” D’Souza added, “A man is to be assisted because he is poor, because his birth and upbringing have not given him the opportunity to make progress, socially, politically and educationally.”

The house’s final vote was in favour of reservations based on the social disadvantage of caste. In January 1950, the constitution was adopted, permitting the government to make reservations for Scheduled Castes and Tribes, and socially backward classes of people who were inadequately represented in the services of the state. The State was also required to reserve seats in the Lok Sabha and state legislatures, for candidates from SCs or STs, proportionate to the population of SCs or STs residing in that particular state. The outlook of the Indian constitution was that reservation would be a tool to ensure representation of political minorities—SCs, STs, as well as other classes of citizens setback by structural, social disadvantage.

The next year, the question of using economic criteria as a marker for backwardness resurfaced. In May 1951, the constitution was amended to give the state the power to make “special provisions for the advancement of any socially and educationally backward classes of citizens, or for the Scheduled Castes and the Scheduled Tribes.” In line with the constituent assembly’s focus on remedying social disadvantage, the former prime minister Jawaharlal Nehru argued that the amendment served the need “to put an end to all those infinite divisions that have grown up in our social life or in our social structures … We may call them by any name you like, the caste system or religious divisions.”

KT Shah, an advocate and an economist who had been a member of the Advisory Committee, critiqued the proposed amendment’s reliance on social and educational—and not economic—criteria to determine backwardness. Shah also questioned categorising “classes of citizens” and not individual citizens as beneficiaries. He noted that provisions for the advancement of socially and educationally backward classes of citizens would be of no use to India’s impoverished citizens, who had seen little progress to “a normal reasonable standard of living and working” since the promulgation of the constitution.

In response, Nehru proclaimed that the social disadvantage to be remedied was a result of cumulative factors including economic considerations. To specifically list “economic” disadvantage would “not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped.” In these debates, it became clear that only structural disadvantage, which comprised social, educational and economic disadvantage cumulatively, would be remedied by constitutional provisions. In contrast to the social disadvantage experienced collectively by groups of people, disadvantage that varies from one individual to another, manifesting as solely economic disadvantage, was not to be constitutionally remedied by special provisions or reservations.

The 1951 amendment went on to be the basis for reservations, fee waivers or concessions for persons from Scheduled Castes and Scheduled Tribes in educational institutions run or aided by the state. The thinking underlying such measures was that representation of political minorities in the services and legislatures could only be realised if the same logic of representation also governs access to educational institutions.

In 1953, Rajendra Prasad, who was the president of India at the time, appointed the first backward classes commission, under the chairmanship of Kaka Kalelkar, a member of the Rajya Sabha and prolific Gujarati literary figure, to determine the criteria for classifying citizens as “socially and educationally backward.” The commission’s 1955 report laid down the following criteria: “low social position in the traditional caste hierarchy”; “lack of general educational advancement among the major section of a caste or community”; “inadequate or no representation in government service”; and “inadequate representation in the field of trade, commerce and industry.”

The report also identified 2,399 castes as “socially and educationally backward” for the purposes of the central government. However, the government rejected caste as a criterion for determining backwardness, stating that it would only serve to “maintain and perpetuate the existing distinctions on the basis of caste.” Finally, the government announced that “it would be better to apply economic tests than to go by caste,” and that state governments were free to define backwardness by criteria of their choosing. With the rejection of the Kalelkar Commission report, no backward classes other than those already listed as Scheduled Castes and Scheduled Tribes were beneficiaries of reservation under the central government, until the partial implementation of the Mandal Commission report nearly four decades later.

In 1979, the Janata Party government constituted the second backward classes commission under the chairmanship of BP Mandal, a member of the Lok Sabha. The Mandal Commission, too, was tasked with determining the criteria for identifying socially and educationally backward classes. It was further asked to recommend steps “to be taken for the advancement” of these groups, and to “examine the desirability” of making reservation in government services for such groups.

The Mandal Commission’s report, submitted in 1980, noted that the use of economic criteria instead of caste in identifying backward classes amounted to “ignoring the genesis of social backwardness in the Indian society.” The report found that social backwardness is a consequence of caste status, which leads to various other types of backwardness. To measure social and educational backwardness, weighted indicators were created: four social indicators weighing three points each, three educational indicators weighing two points each and four economic indicators weighing one point each.

The economic indicators were classes or castes whose “families’ average value of assets is at least 25 percent below state average,” whose number of “families living in kuccha houses are at least 25 percent above state average,” whose “source of drinking water is beyond 0.5 kilometer for more than half the households,” or whose “households had taken consumption loans at least 25 percent above state average.” With these social, educational and economic indicators as the backbone, the Mandal Commission identified 3,743 castes as Other Backward Classes, and recommended reservations, other educational concessions and financial and technical assistance for setting up small and medium industries. The marginalisation of communities due to their caste identity was found to be the primary determinant of backwardness, while the resultant educational and economic disadvantage were found to be compounding factors.

In 1990, the VP Singh government announced that it would implement the Mandal Commission report for the castes and communities that are common to both the Mandal Commission report’s list and the state governments’ lists. It issued an office memorandum stipulating reservations in the services of the union government to the extent of 27 percent for “socially and educationally backward classes,” or OBCs. In 1991, the PV Narasimha Rao government amended the memorandum to reserve 10 percent of seats and posts in the services of the central government for “other economically backward sections of the people who are not covered by any of the existing schemes of reservation.” Since, SCs, STs, and “socially and educationally backward classes” were already covered by the existing provisions for reservation, these other “economically backward sections” would be identified from among the upper castes. Criteria for determining these other sections were to be issued separately, according to the memorandum.

The memorandum was challenged in writ petitions before the Supreme Court in the period between 1990 and 1991. In a landmark judgment in the case of Indra Sawhney vs Union of India, nine judges of the Supreme Court held that sections of citizens cannot be classified as “backward classes” solely on economic criteria, if they experience no structural or social disadvantage. The court affirmed that social backwardness leads to educational and economic backwardness, as the Mandal Commission had found. Accordingly, the Supreme Court struck down the 10 percent reservation for “economically backward sections,” for being incompatible with the constitution.

The 1991 office memorandum is the only precedent to the 103rd constitutional amendment’s provision for upper-caste reservations in independent India. The two differ only in terms of the issuing authority. The 1991 memorandum amendment was issued by a bureaucrat on the assumption that the government had the power to make such reservations, while the present amendment alters the constitution to explicitly empower the government to make such reservations. Since the constitution itself has now been amended to permit what Sawhney disallowed, the judgment in Sawhney cannot be used to challenge the amendment. Constitutional amendments can be struck down by the Supreme Court only if they damage or destroy the “basic structure” of the constitution. It remains to be seen whether any aspect of Sawhney will be considered a part of the basic structure of the Indian Constitution by the Supreme Court.

Time and again, the purpose of reservations has been reaffirmed as being a political safeguard to secure representation for socially marginalised groups in social and political spaces. When viewed through this lens, there is little in the history of independent India to support reservations for upper-castes based solely on individual economic criteria that lack a genesis in social structures.