An interview between Ayaz Ahmad and Abhishek Juneja. Ahmad is head of the Glocal Law School in Saharanpur, U.P., and teaches constitutional law and studies judicial behavior from an Ambedkarite perspective. Juneja is a founding member of the Ambedkar Reading Group, Dehradun. First published here in Round Table India.

Abhishek: How did the 124th Amendment Bill and the 103rd Constitutional Amendment Act come about?

Ayaz: The constitutional debate in the courts around reservation from 1950 onwards focused on reducing reservation to an exceptional policy instrument. To this end the principle of formal equality as enshrined under Articles 15(1) and 29(2) were given primacy over the principle of substantive equality as proclaimed by the second part of Article 14 and Article 46.

This strategy was initially developed to preempt claims of proportionate representation in educational institutions on mythical grounds. For instance, the provision of reservation for Brahmins and upper castes did not find favour with the High Court and Supreme Court which was led by Brahmin-Sayyed judges in the Champakam Dorairajan case of 1951, as it marginally restricted savarna space by prescribing their percentage of representation, and created some space for Bahujan students in the process.

With reference to one of the Brahmin petitioners the Supreme Court observed, “what is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin?” By invoking the extra-constitutional ground of ‘merit’ the Supreme Court in the Champakam Dorairajan case implicitly held that all seats in educational institutions should go to Brahmins!

It was left to the indomitable Periyar and Babasaheb Ambedkar to claim the Bahujan space in educational institutions by forcing Parliament to pass the First Amendment to the Constitution. It was in the form of an enabling clause which made it possible for the State to make a special provision for the representation of the Bahujan class in educational institutions.

Despite the First Amendment, the SC and HCs deployed the ‘judicial policy of postponement of social justice’ to deny Bahujan representation both in educational institutions and State services. But the First Amendment and implementation of social justice policies by the southern states under Periyar’s watch made the SC and HCs quite anxious. The first major blow to reservation came in the Balaji case (1962) where the Supreme Court made three strategic moves:

First, with respect to determining criteria for the identification of socially and educationally backward classes. For this purpose, the Supreme Court underplayed the role of caste and made a case for determining the backwardness on the basis of economic indicators. A bunch of five Brahmin-Savarna judges carefully crafted the economic argument to prevent the social and educational argument from taking strong roots. In a way, the seeds for the EWS Amendment Act of 2019 were planted in this judgment.

Interestingly, caste as a factor for determining backwardness was marginalized by fraudulently assuming that the test of castes would be inapplicable to Muslims and Christians; second, it prevented the categorizing of OBCs into Backward Classes and More Backward Classes by holding that such a categorization is outside the scope of Article 15(4); finally, a case for limiting the quantum of reservation was built by a casteist reading of Article 335 in the context of Article 15(4) which was eventually given the shape of a 50% ceiling on reservation.

Around the same time, Article 335 was similarly read in Rangachari's case (1961) to scuttle reservation in promotion.

These themes from the Balaji case were developed, championed and legitimized over decades by the courts, jurists, journalists and textbook writers. For instance, the SC in the Devadasan (1963) and Chitralekha (1964) cases reiterated the economic argument of Balaji judgment with greater emphasis. Such fraudulent reasoning was utilized by the HCs and SC to delay social justice, so that the ruling class was able to develop neutralizing strategies.

However, relentless social movements for social justice forced the SC to concede some space in the N.M.Thomas case (1975). Pressure from social movements was acknowledged by the SC in the following words, “ aware mass of humanity, denied justice for generations, will not take it lying down too long but may explode into Dalit Panthers, as did the Black Panthers in another country… Jurists must listen to real life and, theory apart must be alert enough to read the writing on the wall ! Where the rule of law bars the doors of collective justice, the crushed class will seek hope in the streets!”

But true to its casteist nature and to subvert the writing on the wall, the Supreme Court laid the foundation of the creamy layer in the same case. Savarna lawyers and judges from the N.M.Thomas case onwards started expressing their anxieties about the impact that social justice policies might have on their disproportionate share in public services and educational institutions.

Therefore, by the time Indira Sawhney (1992) came up for decision in the Supreme Court, we already had a Notification for a 10% quota on economic grounds. In the Indira Sawhney case the SC could not immediately make out how to uphold 10% quota for the upper castes, as in the same judgment it had to freeze many anti-social justice devices developed over a long period of time.

It was now left to the political wing of upper castes, alarmed by the partial implementation of the Mandal Commission report, to come up with a constitutional strategy to enforce an upper caste quota.

The BJP in 2003 appointed a Group of Ministers to come up with ideas that could be implemented for the poor among the upper castes. In 2004 a task force was set up to work on the criteria of reservation for economically backward savarnas.

In 2006 the Cong-RSS-led UPA 1 government appointed a commission to study separate reservation for economically backward people from the upper castes. The commission submitted its report in 2010, and the proposal to implement it was prepared by 2013 which involved an amendment to the Constitution.

Here we are in 2019 with the 10% EWS, conceived by courts and delivered by Cong-RSS and BJP.

Abhishek: What is meant by the ‘basic structure’ of the Constitution?

Ayaz: In theory, constitutions are made by people and what is made by people can also be amended by them. In a democratic society, such making and amending of constitutions is done by representatives of the people. One can always quarrel with the method of election to question the representative character of the elected body. But once a body is elected by an agreed procedure with the power to make or amend the constitution, there are usually few or no restrictions on its capacity to make or amend the constitution.

The Constitution of India was made by the Constituent Assembly which was elected by provincial legislatures which in turn were elected by an electorate restricted by property and educational qualifications.

Back then, such proprietary and educational status was the monopoly of the Ashraf-Savarna castes, which is why the Constituent Assembly was disproportionately populated by these classes.

Thus, the Constituent Assembly was not elected by universal adult franchise and did not have the full approval of the socially and educationally backward classes of its time.

Nevertheless and in tune with the well-established tradition of constitution-making, the Constituent Assembly enjoyed full power and authority to make the Indian constitution. As a result very little space could be secured for the SC/ST/OBC classes in the Constitution.

Also, please keep in mind that this Constituent Assembly was truncated by the partition of the subcontinent, and worked under the specter of communal violence. This partially explains why there was no express provision for the Pasmanda in the original constitution, although it was the most vulnerable class of that period.

But as no one generation can bind all succeeding generations, the power of amending the constitution is built into every constitution which is passed on from generation to generation. The power of amending the Constitution through constitutionally prescribed procedure operates as a device through which constitutional allegiance can be renewed by each generation.

Therefore the power of amendment, like the power of making the Constitution, is beyond the scrutiny of courts, as courts themselves derive their legitimacy from such powers under constitution.

This implies that constitutional amendments are not subject to judicial review; that they cannot be invalidated by any court.

The Indian Constitution too preserved this right of succeeding generations to amend the Constitution through Parliament, with a special procedure prescribed under Article 368.

However, the Supreme Court in the Kesavananda Bharati case (1973) by a wafer-thin majority of 7:6 laid down that even amendments to the Constitution could be judicially reviewed. Only the scope of such review was limited to the ‘basic structure’ of the Constitution. So if a constitutional amendment violates this basic structure it can be invalidated by the Supreme Court.

The power of Parliament to amend the Constitution was recognized but it was seriously limited by the condition that Parliament cannot alter or destroy the basic structure of the Constitution by using its amending power.

Curiously, the precise contents of this basic structure were left undefined and kept open.

Over a period of time Supreme Court has held that the basic structure of the Constitution includes: Fundamental Rights, Federalism, Secularism, Power of Judicial Review, Rule of Law, Parliamentary System of Government, Independence of the Judiciary, Principle of Free and Fair Elections, Powers of the Supreme Court under Article 32 and High Courts under Article 226, and a few more vague principles.

Moreover, the Supreme Court arrogated to itself the power to add to this list, as and when it deems fit, in any case before it. In effect, with such wide and arbitrary powers, the Supreme Court has transformed itself into a sort of permanent Constituent Assembly, but without the approval of the people!

The basic structure doctrine was a result of a turf war between a Brahmin-Savarna controlled Parliament and a Brahmin-controlled Supreme Court. The prospects of Parliament gradually coming under the control of the Bahujan were greater than the Supreme Court. So it is not difficult to speculate why the tussle eventually ended against Parliament.

With this has gone the possibility of a Bahujan gloss on the Constitution - until Parliament comes under Bahujan control, and there is simultaneous Bahujan control of the Supreme Court as well!

In this context, please note how the basic structure doctrine was legitimized by the imposition of emergency in 1975.

My feeling is that this doctrine will eventually be used as a safety valve against the legitimate exercise of Parliament’s power to amend the Constitution, when it is Bahujan controlled…

You can read the rest of the interview here in Round Table India.