Transformative Constitutionalism, Substantial versus Formal Equality and the Reservation Debate: Reflections in B.K. Pavitra v. Union of India (II)

On May 10, 2019, a two-judge bench of the hon’ble Supreme Court in its judgment confirmed the reservations in promotions state civil services intra vires the Constitution[i], thus making significant changes in B. K. Pavitra (I) which declare the provisions of the Act under challenge to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution.[ii] This step by the Supreme Court is rather reaffirming of the idea of prevalence of substantial equality over formal equality, and thus, widening the scope of transformative constitutionalism in Indian socio-legal system.

The core of the reservation debate has always been the question of equality of opportunities. Deep down B.K. Pavitra[iii] also lies in the same category. The reservation has always been the knotty situation for the debate and discussion forums. The biggest and most important justification to reservation has been the need of equality and social justice, which are fundamental for a welfare state and rather important in a diversified country like India. There are multiple social inequalities which can be ended through the means of social justice. But at the same time, it is equality that paves the way to social justice.[iv] The Apex court has also lucidly and explicitly decided that it is the substantial or proportional equality that allows the state to take affirmative action in favour of disadvantaged groups in the society, where formal equality just makes the law treat everyone in same manner without favouring which doesn’t really bring change into the status quo.[v]

In the B.K. Pavitra (II), Chandrachud, J, writes, “For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born.”[vi]

Even at the time of independence and further during the drafting of Constitution, members of the Constituent Assembly recognised that a number of inequalities remained deeply rooted in the existent Indian society and the Constitution is going to serve as a transformative document to overcome them.[vii] The most common method of creating an enabling environment and eliminating socio-economic inequalities has been the affirmative action. Among various methods, one prominent method of overcoming the caste based inequality against SCs and STs is to provide reservations for them in legislature and government services. The key reason behind incorporation of reservation provisions for SCs and STs in the Constitution under Article 15 and 16 was the existence of inequalities in the society which had caste structure full of discrimination and prejudice severely imbibed in it.[viii] Constitution, as a transformative document, has always been on the mission of eradicating the inequality.  The realization of Constitution’s transformative ability has been on display time and again, through a number of judicial decisions protecting the sacrosanct Part III rights and giving newer dimension to those rights. There was a display of transformative constitutionalism when in Indra Sahwney[ix] Article 16(4) was held as a facet of Article 16(1) and not an exception to it, thus negating the majority view adopted in T. Devadasan[x]. The transformative side of constitution prevailed when right to sexual identity and orientation was considered as a part and parcel of Article 21 and rights of LGBTQ community were safeguarded.[xi] Prevalence of individual morals and choice over public morality is another facet of transformative constitutionalism, as brought to light in Joseph Shine[xii]. The realization of Constitution’s transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts[xiii], and bringing social change towards a welfare state was the vision the drafters of the Constitution.

The understanding of the Indian Constitution as a transformative document is clearly not a new idea and has been thrown light at multiple instances by various scholars with the hope that a transformative constitution will bring social change on large scale through what we can call as instrumentality of the law. [xiv] The Constitution did play the transformative role which was assigned to it— it changed the colonial subjects into democratic citizens[xv] and brought right to protect them. The Constitutional ideals enshrined in preamble mandating social justice and equality in all aspects are nothing but the transformative side of the constitution which has been on show through provisions such as article 39A, where making the environment enabling and justice accessible are the long term goals.

Hence, it is undisputed that the substantial equality is the kind of equality Constitution aims for. It ensures representation, growth and holistic development. The decision in B. K. Pavtira (I) lacked data based research and thus, the act was held constitutionally valid. Therefore, the shift from recognition of substantial equality in its entirely through ways like promotions is another step towards the fulfillment of transformative nature of constitution, even if it remains debatable on the idea of merit versus opportunity.

REFERENCES

[i] B. K. Pavitra v Union of India (II), Civil Appeal no. 2368 of 2011.

[ii] B. K. Pavitra v Union of India (2017) 4 SCC 620.

[iii] Supra note 1.

[iv] Social Justice in an Open World – The Role of United Nations, Department of Economic & Social Affairs, ST/ESA/305, https://www.un.org/esa/socdev/documents/ifsd/SocialJustice.pdf, last visited 20 Jun 2019.

[v] M. Nagaraj v Union of India, (2006) 8 SCC 212, pg 250.

[vi]Supra note 1, para 107, pg 106

[vii]Supra note 1, para 107(I), pg 107

[viii]Supra note 1, para 118, pg 115.

[ix] Indra Sawhney v Union of India, (1992) Supp (3) SCC 217.

[x] T. Devadasan v Union of India, AIR 1964 SC 179.

[xi] Navtej Singh Johar v Union of India, Writ Petition (criminal) no. 76 of 2016

[xii] Joseph Shine v Union of India, Writ Petition (criminal) no. 194 of 2017.

[xiii] Rahul Bajaj, Gautam Bhatia on An Introduction to a Transformative Constitution, 29 Jan 2019, available at: https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2019/01/gautam-0, last visited Jun 19, 2019.

[xiv] Kanad Bagchi, Decriminalising Homosexulity in India as a Matter of Tranformative Constitutionalism, 9 Sep 2018, available at: https://verfassungsblog.de/decriminalising-homosexuality-in-india-as-a-matter-of-transformative-constitutionalism/, last visited Jun 19, 2019.

[xv] Gautam Bhatia, The Constitution of India was not just a founding document. It had a radically transformative vision- Excerpt from A TRANSFORMATIVE CONSTITUTION, 4 Mar 2018, available at:

https://scroll.in/article/914555/the-constitution-of-india-was-not-just-a-founding-document-it-had-a-radically-transformative-vision, last visited 20 Jun 2019.

ABOUT THE AUTHOR

Anshi Joshi is a student of 3rd year, B.A.LL.B (Hons.) at Maharashtra National Law University, Nagpur. Her areas of interest are International law, ADR, Constitutional law among others.

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