Our Indian Constitution elaborates right to equality under two separate heads, namely ‘equality before law’ and ‘equal protection of law’. We may remind that our founding fathers went beyond the formal equality to bring in dynamism, wherein ‘equals are to be treated equally and un-equals are to be treated unequally’. Categorisation between equals and unequal is to be made by the segregator (usually governmental agencies) on a rational basis keeping in mind the objective purpose behind such segregation. We must confess that the allied concept of equal opportunity, although complicated to understand, can be contextually elaborated as a situation in which children born into families of different classes have the same chance of success.

Under this broad framework, the Supreme Court has worked out the affirmative policies since the 1950s. As much as there is an inherent normative desire of the society to be merit oriented, yet we cannot ignore that affirmative actions are a social reality fuelled by the difference of accessibility perpetuated by various factor(s) from past as well as present.

To set the basic undertone right, our Constitution is said to be both caste/religion blind as well as caste/religion conscious. In accepting to be caste/religion blind, the Constitution sets normative goals for us to be caste neutral; by being caste/religion conscious, it acknowledges the existing reality that not all persons belonging to caste/religious community start at the same level. So, in order to address these disparities, the Constitution is etched with distributive justice in the form of various affirmative policies under Articles 15 and 16. It is in this context that affirmative policies are not to be seen as an exception to equality rather a part of substantive equality in itself.

Having observed thus, let us first understand the 124th amendment which provides for a maximum of 10 per cent quota for general category in education and employment. Before we venture any further, we must remind ourselves that the issues of constitutionality should never be clouded by political considerations.

The quota for the economically backward stems from the idea that the under-representation of a particular class or community does not hinge on social backwardness alone, rather the opportunity to access facilities are also thwarted by economic considerations as well. In a country occupied by 1.3 billion people and 95 per cent of those in general category being covered within the criteria portrays a slow proliferation of a malady which Governments in the past have failed to address.

Contemporary forms of discrimination, unlike earlier ‘caste/religion’, are often hidden as “good intentions.” The ongoing creamy layer debate is a clear example. Arguments against the aforesaid amendments are shrouded in the language of equality and meritocracy — the belief that individuals should just “pull themselves up by their bootstraps.” But this belief in merit fails to see that some people don’t even own boots, and as a result do not have straps upon which to hoist themselves.

‘Economic reservation’ necessarily furthers horizontal equality, and more effectively than the caste-based ‘vertical reservation’, by diversifying representation from all strata within a community. ‘Vertical reservation’ is usually seen as suspect category, which propagates and consolidates caste/religious biases, whereas ‘horizontal reservation’ does not raise any such concerns and generally commands cross-community support.

Calls for such a quota have been raised in the parliament a number of times in the past, including a serious attempt foiled only by the Indra Sawhney Case. It may be noted that the Apex Court in Indra Sawhney Case, was concerned under the earlier framework and does not provide a definitive answer under Article 15 relatable to education. Moreover, the reasoning of the Supreme Court is inadequate, and requires elaborate consideration.

Recently, we came across an article by a duo, Dr. Yogesh Pratap Singh and Dr. Alam, tilted ‘10% quota unconstitutional’. This is a good contribution to the overall debate, however, ignores basic premises argued herein. Their argument hinges on the primary fact that theraison d’être of affirmative action in India is alleged to have been modelled on the criterion of social backwardness alone, unlike the present amendment which considers economic basis as well. There may be a ring of truth in their words, as much of Indian discussion is centred on the aspect of ‘vertical affirmative policies’ between various castes and religion’ that horizontal equality has often been reduced to the background.

It may not be out of context to observe that recently, Supreme Court in the ‘SC/ST Creamy Layer Case’ did accept the horizontal equality considerations under the Constitution while excluding the creamy layer from SC/ST category.

Their conclusion seems to be based on three grounds which we will be considering in seriatim. First criticism is that the normative appeal of affirmative action will be diluted by introduction of economic quota. As we have elaborated above, the purpose behind economic quota cannot be compared with quota for SC/ST or OBC, as the latter aims at remedying past discrimination, while the former aims at diversification. This difference provides for the harmonious existence of different affirmative schemes within its boundaries. Moreover, a comparison with vertical affirmative policy would be misleading as that rests on a different normative basis. The second and third objections hinge on the requirement and lack of understanding for bringing out such policy. We would like to answer these objections together.

Having argued that the economic quota can be sustained on a constitutional challenge on the basis of compelling state interest in diversity, we must observe that the difference between the ‘vertical affirmative policies’ and ‘horizontal affirmative policies’ mandates us to view them differently. In Nagaraj and ‘SC/ST Creamy Layer Case’, the Apex Court recognized a narrow tailoring requirement for a ‘horizontal affirmative policy’. In determining whether an affirmative action remedy passes muster, it should portray inter alia, (i) the efficacy of alternative remedies; (ii) presence of sun-set clause; (iii) recognition of economically weaker members based on the objectives (iii) the relationship between the percentage of economically-weak persons to be employed/admitted and the percentage of economically-weak group members in the relevant population.

Although it is noted that identification will be notorious and difficult (Tarunabh Kaithan, A theory of discrimination law (2015)), yet data on income, wealth, poverty density etc., may be useful.

The amendment itself being merely an enabling provision does not give out much on the meaning of ‘indicators of economic disadvantage’ and leaves the same for future ascertainment by delegated legislation. In our considered opinion, the hastened approach could be rectified by adequate studies and interpretation by the Court.

It may be noted that economic quota is not simply a covert means of bringing in caste/religion based affirmative action. It does much more, in creating equal opportunities for Indians within the broad ‘General Category’.

Under-represented and border case communities will be benefited greatly due to their disproportionate lower income, lower wealth and demographic representation. With the caste diversity being represented by ‘vertical reservation’, socio-economic diversity will be preserved through ‘economic horizontal reservation’. Working class urban populace among ‘general category’, who are denied equal opportunities will be compensated for the obstacles they have overcome. This in turn will reduce tensions among various castes, currently fuelled by caste centred vertical affirmative policies. Equality of opportunity being a basic ethos under our Constitution, cannot be achieved in reality unless economic disadvantages are removed.

Now that the Supreme Court has issued notice in a petition challenging the aforesaid amendment, it is time for us to reflect whether the 50 per cent quota limit set in the Indra Sawhney Case is still applicable? Whether the schematics and the quota set earlier need to be reworked, considering lot of water has flowed since Mandal Commission? Whether the 10 per cent quota on economic basis is sustainable for both education as well as employment? If so, how to work out the same and criteria thereunder? And whether we need the quota system at all?

(Sughosh Subramanyam & Sanskruti Samal are, respectively, a practising advocate and a Research Assistant at the Supreme Court of India.)