How has our constitutional law evolved in the last 75 years? (Part 2)

Case: Indra Sawhney v Union of India (1992) is a modern interpretation of affirmative action. The Supreme Court upheld reservation for Other Backwards Classes (OBC) in government employment. The government reserved 27% of jobs for OBCs in 1990, based on the Mandal Commission Report (1980). The Report identified socially and educationally backward classes worthy of affirmative action. This led to massive protests across the country and legal challenges.

The Court acknowledged that “caste” is a valid indicator for determining backwardness. A discriminatory law including the “caste” criterion was permissible under Articles 14 and 16, and the government policy provided the rationale for the differential treatment between classes. The judgement excluded the “creamy layer” from the benefits of reservation - those sections within the OBC who are socially, economically and educationally already at an advantage- and set a cap of 50% of total reservation for government jobs.

Article 14 says every person is entitled to be treated equally and to be fully protected by laws passed by Parliament or State legislatures (plenary legislation) or by executive agencies (delegated legislation). But this does not stop the State from enacting laws that may treat people differently in the interest of giving a leg up to those in need. A discriminatory law for a separate class of people should clearly identify the class and the rationale for the differential treatment. Within that class, all persons should have equal protection of the law. The government cannot arbitrarily use its discretionary powers to pick and choose which persons or groups a law will apply to and how. This Article creates the foundation for affirmative action policies.

Article 16 ensures the right to equal opportunity in public employment, without discrimination based on religion, race, caste, sex, descent, place of birth, or residence. But this Article also carves out exceptions for Scheduled Castes, Scheduled Tribes and backward classes of citizens - the affirmative action provision. It creates separate categories to achieve social justice and representation of historically marginalised people.

Case: Rajbala v State of Haryana (2015) concerns the Haryana Panchayati Raj (Amendment) Act, 2015 passed by Haryana government, which barred five categories of citizens from contesting Panchayat elections in the State - those who, lacked mandated educational qualifications, did not have functional toilets in their homes, had financial liabilities with any government authority, had unpaid utility dues (electricity, etc.), and had serious criminal charges against them. The petitioners (candidates who failed to meet the criteria) had argued that it ruled out a large number of citizens from rural Haryana, especially women, from contesting the Panchayat elections.

The Supreme Court upheld the legislation as progressive. The objective was to ensure that candidates seeking election to Panchayats need to have some basic education to discharge their duties as elected representatives effectively. Candidates also need to demonstrate their commitment to civic responsibilities and that their personal records were clean. The legislation was held to be reasonably classified under Article 14 and not arbitrary.