Protective Discrimination

Held. By majority the rule and the orders under it were upheld and the High Court's judgment set aside. The reasoning that matters: while the accent in article 14 is on the negative duty of the State not to deny equality, the emphasis in article 16(1) is mandatory; and if equality of opportunity guaranteed by article 16(1) means effective material equality, then article 16(4) is NOT an exception to article 16(1) but only an emphatic way of putting the extent to which equality of opportunity could be carried, namely even up to the point of making reservation. Article 16(1) is part of a comprehensive scheme to ensure equality in all spheres and permits classification just as article 14 does, subject to article 16(2).

Why it matters. It is the turning point. Before Thomas, reservation was a permitted departure from equality; after it, an application of equality. Every later development, including reservation under article 16(1) itself and the sub-classification reasoning in State of Punjab v. Davinder Singh, follows from it.

And Indra Sawhney settled it. Its summary records that clause (4) of article 16 is not an exception to clause (1) but an instance and an illustration of the classification inherent in clause (1); that clause (4) is exhaustive of the subject of reservation in favour of a backward class; and that reservations may also be provided under clause (1), adjusted so as not to exceed the level of representation prescribed for backward classes.

The four requirements of a valid protective measure

One: an intelligible differentia. The group must be identifiable by a criterion that is not arbitrary. Caste may be a starting point, and Indra Sawhney held that a caste can be and often is a social class, but M.R. Balaji holds that caste cannot be the sole or predominant test.

Two: a nexus with the object. The measure must be capable of advancing the group. This is where a reservation that reaches only the best-off within the group fails, which is the creamy-layer point.

Three: proportionality in extent. The fifty per cent rule, from Balaji and Indra Sawhney, and the requirement in M. Nagaraj of quantifiable data.

Four: it must not destroy the right it qualifies. Article 335's efficiency requirement, and the basic-structure limit applied in Nagaraj and Janhit Abhiyan.

The objections, and the answers

That it is discrimination whatever it is called. The answer is that discrimination means treating like cases differently without justification, and the whole point of the doctrine is that the cases are not alike.

That it penalises an individual who did nothing. This is the strongest objection and the honest answer is that it does. The reply is that the seat or post is a public resource being allocated across a society rather than a prize in a private contest, which is the distinction drawn in [Social Justice].

That it entrenches the categories it uses. Real, and it is why the creamy layer, the fifty per cent rule and the periodic review of lists exist.

That it lowers standards. Article 335 requires efficiency to be considered, and Ashoka Kumar Thakur directed that cut-off marks for the Other Backward Classes be set not more than ten marks out of a hundred below the general category. Indra Sawhney recorded that the rule of reservation cannot be called anti-meritarian, while accepting that there are services and posts to which it may not be advisable to apply it.

And that it should be economic rather than social. Indra Sawhney held that a backward class cannot be identified only and exclusively by economic criteria; Janhit Abhiyan then upheld a reservation structured singularly on economic criteria as a SEPARATE category, which is a reconciliation rather than a contradiction: economic criteria may not define a backward class, and may define a different class.

A worked example

A State exempts members of the Scheduled Castes from a departmental test for two years and a candidate challenges it under article 16(1).

On the exception theory. Article 16(4) permits reservation of posts; an exemption from a test is not a reservation of posts; therefore there is no permission and the measure fails.

On the Thomas theory. Article 16(1) itself permits classification with an intelligible differentia and a rational nexus. The group is identifiable, the object is to bring it into the service, and a temporary exemption is capable of advancing that object. The measure stands, and article 16(4) is not needed at all.

Which is exactly what happened. N.M. Thomas is that case, and the difference between the two answers is the difference the doctrine makes.

And the limits the second theory carries. The measure must be temporary or reviewable, must not destroy efficiency under article 335, and must not exceed the ceiling.

What this does NOT mean

It does not mean any special provision is valid. The four requirements apply, and Balaji, Indra Sawhney and Nagaraj are cases in which measures failed them.

It does not mean reservation and protective discrimination are the same thing. Reservation is one form of it; exemptions, relaxations, concessions, scholarships and reserved seats in legislatures are others.

And it does not mean the doctrine settles how much. It settles that differential treatment is permissible in principle, and every argument about extent is fought out afterwards.

Quick revision

Protective discrimination: differential treatment of a disadvantaged group to bring it to real equality. Justified under article 14's classification doctrine, intelligible differentia plus rational nexus with the object, the object being written into article 46. Equality among unequals is inequality. The exception theory: article 16(4) as a narrow exception to article 16(1). N.M. Thomas 1975: article 16(4) is not an exception but an emphatic statement of how far equality of opportunity may be carried; article 16(1) permits classification as article 14 does. Indra Sawhney 1992 adopted it: an instance and illustration of the classification inherent in clause (1), and reservation is possible under clause (1) itself. Four requirements: intelligible differentia, nexus, proportionality including the fifty per cent rule and quantifiable data, and not destroying the right it qualifies.

Test yourself

1. State the justification for protective discrimination under article 14. That article 14 permits classification resting on an intelligible differentia with a rational nexus to the object; that treating unequals alike is itself a denial of equality; and that the object is written into article 46, the promotion of the educational and economic interests of the weaker sections and their protection from social injustice.

2. What was the exception theory, and what followed from it? That article 16(4) is an exception to the rule of equality of opportunity in article 16(1). Two consequences followed: an exception is strictly construed, so the scope of reservation was read down; and no reservation was possible outside article 16(4), since that clause was the only permission.

3. What did N.M. Thomas hold, and why is it the turning point? That if equality of opportunity under article 16(1) means effective material equality, article 16(4) is not an exception but an emphatic way of putting how far that equality may be carried, even to the point of reservation; and that article 16(1) permits classification as article 14 does. It is the turning point because reservation ceased to be a departure from equality and became an application of it.

4. Name the four requirements of a valid protective measure. An intelligible differentia identifying the group; a rational nexus with the object of advancing it; proportionality in extent, including the fifty per cent rule and quantifiable data; and that it must not destroy the right it qualifies, which brings in article 335 and the basic-structure limit.

5. Are Indra Sawhney and Janhit Abhiyan inconsistent on economic criteria? No. Indra Sawhney held that a BACKWARD CLASS cannot be identified only and exclusively by economic criteria. Janhit Abhiyan upheld a reservation for a SEPARATE category, the economically weaker sections, defined by economic criteria and expressly excluding the classes already covered. The two propositions are about different categories.