The recent judgment of the Supreme Court in Janhit Abhiyan v. Union of India, popularly as the EWS Case, is an opportune moment to examine the trajectory of reservation/ affirmative action in India.

Dragging a law enacted by parliament into the realm of judicial review in the context of differential treatment in generic sense and reservation specifically, can be traced back to Champakam Dorairajan case of 1950. 

The said decision went against the government’s attempt to provide reservation to a category of population in the State of Madras and ultimately ended up in the First Amendment of the Constitution through insertion of Article 15(4).

The apex court in that judgment opined that reservation was an exception to equality and hence, violative of equality concept envisaged in Part III of the Constitution. 

In the said case even the reliance on Part IV, which mentions Directive Principles of State Policy, was not sufficient enough to sanctify and save the said government order. 

Subsequently, by an alternate opinion in Devadasan case, there was a rationalisation whereby reservation was termed as a facet of equality and not an exception. 

In the NM Thomas case, the Supreme Court accepted the alternate version and concluded that reservation was not an exception but rather a facet of equality.

The said decision also demonstrated the concern of Justice VR Krishna Iyer who highlighted how a category of ‘higher harijans’ was continuously deriving the benefit of affirmative action.  

By this, the judge was bringing in the idea of an elitist class having access to ‘honour and monies’ within a caste that was considered as a class for protective discrimination.

This was the first instance of bringing in materialistic attributes into the realm of protective discrimination.

Even though not directly linked, two other aspects need to be mentioned for demonstrating the larger canvas that is relevant for the present position taken by the apex court in the EWS case.

First, there was the widening of individual liberty wherein the ‘due process clause’ followed by the United States of America was brought in through judicial interpretation to effectively replace the ‘procedure established by law’ that is laid down in Article 21 of the Indian Constitution. 

Second, is the opening of the economy which was done by the Government of India which was a switch from the socialist version to a liberal economic version. 

The reading together of widening of individual liberty and presence of a liberalised economy definitely indicated the chances of economic condition at an individual level, getting predominance over social condition at a class level. 

The necessary fall out of this was the bringing in of economic criteria of an individual together with the class  criteria of the category when extending reservation and, thus, emerged the concept of ‘creamy layer’ in the context of reservation in India.  

The protective discrimination meted out to a class of population relying on the caste criteria in the Indian context was a corrective mechanism rather than a facet of distributive justice.

The prevalence of caste based system for generations and the unfair treatment that was meted out, whereby a certain population was denied access to ‘honours and monies’ relying on the criteria of caste, resulted in making a set of population a deprived category. 

This continuous treatment based on the criteria of caste was the compelling reason for extending protective discrimination to such castes taking their caste as a criteria for class. 

The aim of this method of preferential treatment conveniently referred to as reservation was, thus, in turn an intergenerational corrective justice of earlier generations' failure to render distributive justice.

This is also the rationalisation for continuously highlighting that reservation, as envisaged in Indian context, is a time bound affair.

The concept of creamy layer or rather extending preferential treatment to people from certain castes who are economically below a threshold, amounted to bringing in economic criterion to determine whether a classification based on caste was eligible for the said preferential treatment.

Due to this, the social backwardness that was highlighted as the criterion for reservation, was slowly getting influenced by the economic criterion. 

This economic criterion in the realm of preferential treatment coincided with the change in political approach whereby the economy was opened up. 

The active involvement of government and the so called ‘license raj’ in the economic realm, which was further fortified by a general closed approach towards players from outside the nation, were getting altered.

In such a scenario when each individual is on his own with a higher element of liberty clubbed together with an open economy, things boil down to the individual and his economic success in determining his possibilities in the social structure of the society. 

Down the line, it is interesting to note that Article 21A was inserted in the Constitution whereby the right of the individual and the duty of the system in providing education was highlighted. Education, in the present times, is a necessary tool for improvement in social structure. 

The opening of the economy and the subsequent development saw a gradual exit of the State from many activities, thereby, withdrawing from its role as an employer or as a means of generating income or livelihood for the subjects.

The continuation of open economy for about thirty years paved the way for the present constitutional amendment wherein economic criteria has been taken as a tool for determining class that requires preferential treatment. 

This also meant leaving out other classes that were already getting preferential treatment based on caste as a means of determining class. 

Before the apex court the challenge with respect to this constitutional amendment was discussed from the perspective of reservation alone.

However, there is a class aspect which is identifiable in the decision though it did not come from the court per se but from the then Attorney General KK Venugopal.

The first question raised by the Attorney General was highlighting the economic criterion as a tool for discrimination. As per the wording of the same, reservation based on economic criterion is only a part of that larger issue. 

Even though the preamble relies on different facets of justice, the slow and continuous involvement of economic criteria indicates the shadowing of the other two elements. ie. political and social, as criteria for extending preferential treatment.

When the discussion revolves around the appropriateness of reservation based on economic criterion vis-a-vis other criteria and when the system is accepting the economic criterion, the point that is missed is why is there an absence of concern and discussion regarding the increasing importance accrued to economic criterion. 

It needs to be noted that the State is the biggest beneficiary when the subjects are on their own with respect to creating the materialistic means needed to propel and augment them in the system. Further, even with Article 21A, the State is continuously creating a fertile ground for private entities to bring in education as a means for better economic achievements. Even though it may be argued that many of the top higher educational institutions are still under the government, the entry/ admission to such institutions is such that primary and secondary educational institutions (under government) are incapable of giving a robust grounding to pupil so as to ensure fairness in getting admitted to such institutions. The power play of economic means including costly training processes is coming in the way of equal opportunities for the economically underprivileged. 

Thus, the shying of the State in ensuring a uniform education with nil cost is the contributory factor for bringing in economic criteria for any sort of discriminatory treatment. 

The capacity building in the form of education should be the priority of the State so that economic criteria does not come in the way of absence of access to honour or money.

It is a sad situation when the shrinking of the State is, in fact, the cardinal cause of discrimination on financial basis.

Unlike the corrective means based on social backwardness which was at least a time bound measure, the economic criterion can be made to stand perpetually at least theoretically, and will help the State shy away from its responsibilities.  

The idea of Navodaya Schools was one which was capable of integrating the newer generations irrespective of their background and was also the best tool hitherto developed by the State in ensuring that the new generation is not influenced by their social structures. 

Schooling of that kind had the capability to change a generation provided the number was sufficient for any seekers of the same. Imparting the skill to catch fish is better than giving the fish for free.

The columnist is a lawyer with Vijayaraghavan and Devi Advocates and practices before the Kerala High Court.

Views expressed are of the author and do not necessarily reflect the views of Bar & Bench.