Photo: Pradeep Gaur/Mint
Photo: Pradeep Gaur/Mint

Opinion | Why Supreme Court shouldn’t adjudicate quotas, good or bad

The issue is not if these decisions are right or wrong, but if the courts should get into such areas

The recently-legislated 124th constitutional amendment to create a 10% quota in jobs and education based on economic backwardness can be opposed on many grounds. But the one ground on which many of its critics think it will fail—the test of constitutionality—is actually the test that it should pass. The constitutional test involves two hurdles, one relating to the 50% limit set on quotas in the Indra Sawhney judgement of 1993, and the second to the fact that so far only social and educational backwardness have been recognized as valid justifications for quotas. Indra Sawhney has been quoted in a newspaper as saying the new quota falls foul of one of the “basic features" of the Constitution, and hence is liable to be struck down.

The quota case is not something the courts should meddle with, but before we get into that, another case, involving the Madras high court, is worth mentioning. The court last week struck down the state government’s decision to gift 1,000 along with other things to all ration-card holders on the occasion of Pongal. The court ordered that the money should be given only to those who are below the poverty line, and that richer people need not receive this dole since the money can be put to better use.

One does not have to support the idea of the quota or the Pongal freebie to underline another important element of constitutionality involved here—the right of elected representatives of the people, at the centre or states, to decide what is the right thing to do. Unaccountable courts should not—except in extreme cases—weigh in on economic priorities, especially when they themselves have caused much economic disruption and damage through their judgements. Examples of the disruptions caused by judicial orders include the wholesale cancellation of spectrum and coal mine licences, the 2017 ban on highway liquor bars, which the Supreme Court itself had to modify later when it was unimplementable, and the 2015 registration ban and subsequent cess imposed on luxury diesel vehicles in Delhi. The issue is not whether these decisions are right or wrong, but whether the courts should even get into such areas. Let’s start with the case of quota extension to the economically backward. However bad the idea may be, at the end of the day it is a constitutional amendment enabling a different approach to affirmative action that looks beyond caste. Why should the courts be deciding that caste should be the only way to decide on quotas, or that 50% is the right limit to set on it? Why not 40% or 60%, when one state (Tamil Nadu) has already legislated 69% and the law has been put into the Ninth Schedule where the courts can’t touch it? There is no logic to the 50% limit to quotas, except that this number looks like a balance between two extremes—zero and 100.

We need to also question the idea that putting in income-based criteria for quotas is somehow unconstitutional or violative of its alleged basic feature. For a Constitution that ultimately hopes to make caste irrelevant, is it right to make caste (also couched as social and economic backwardness) the sole criterion for quotas? If caste is okay, so is class. What is the logic that dictates this artificial barrier where caste is kosher but not class? Everyone has elevated caste to some kind of inviolable fact of life, and this is what the court, too, has done.

As for the bar on changing “basic features" in the Constitution, this is a joke when these features have never been defined, except broadly. Democracy or pluralism or federalism may be seen as basic features, but the Constitution itself allows limits to be set in each case. The courts, on the other hand, have run a coach-and-four over even clearly defined basic features in the original Constitution. Two examples: the Supreme Court has interpreted judicial independence as the right of the collegium to appoint judges independently of the executive, making India the sole country to have this kind of judicial self-selection. Secondly, the courts have been complicit in the complete elimination of one fundamental right that was in the original Constitution: the right to property. So, they have extended a right in one case that wasn’t a basic feature in the original Constitution, and erased another. So what basic feature are we talking about? If a Constitution can see two amendments every year, how is anything a basic feature, especially when it is not being defined clearly? And when two basic features clash—as in the Sabarimala judgement, which pitted the question of gender equality against the right to religious practices—we end up extinguishing one or the other.

Coming to the Madras high court order in the Pongal-gift case, one wonders how the court will decide if a government were to adopt universal basic income as a policy response to joblessness. Will it then rule that Ratan Tata and Mukesh Ambani should be excluded, since they are not below the poverty line? If we extend the logic further, why offer subsidized fertilizers to all farmers, when the money should only go to poor farmers?

However morally and economically sensible it may be to restrict subsidies to the needy, the courts are in no way empowered to decide such issues. There is no basic feature to defend in the case of economically determined quotas, however bad you think the idea is.

R. Jagannathan is editorial director, ‘Swarajya’ magazine