Conspectus of Transformative Constitutionalism in India: Analysis via EWS ruling

Author: Ayush Akar

Co-Author: Himanshu Ranjan

The question of the indefinite continuation of reservation has arisen in the recent case of Janhit Abhiyan v. Union of India. While Supreme Court recognised the EWS quota, the major focus of the judgment focussed towards transformative constitutionalism. Hon’ble Justice Trivedi rightly pointed out towards the revisit of the current system will help to realise the transformative constitutionalism enshrined in the constitution. Concurring with the opinion of Hon’ble Justice Trivedi, the saturation point should be there to achieve the objectives behind the introduction of reservation in the government sector.

What is Constitutionalism?

Prof Upendra Baxi rightly defined constitutionalism as “Constitutionalism, most generally understood, provides for structures, forms, and apparatuses of governance and modes of legitimation of power. But constitutionalism is not all about governance; it also provides contested sites for ideas and practices concerning justice, rights, development, and individual/associational autonomy. Constitutionalism provides narratives of both rule and resistance.” According to Dr DD Basu, constitutionalism demands supervision over the exercise of governmental powers so that such powers do not erode the democratic values on which it is built. These principles include the safeguarding of basic rights through the concepts of checks and balances and the rule of law. Constitutionalism not only seeks to achieve the goals expressed in the document, but it also accommodates changing societal requirements via the process of social reform. The same opinion was pointed out by Hon’ble Justice PB Pardiwala in the same case, “reservation is not an end but a means — a means to secure social and economic justice. Reservation should not be allowed to become a vested interest. The real solution, however, lies in eliminating the causes that have led to the social, educational and economic backwardness of the weaker sections of the community”.

Time for Destimatising of Reservation

Affirmative action in India was established by the Constitution in 1950, making it the world’s oldest such programme. Historically, quotas were intended mainly for tribal people, backward caste groups, and dalits, the Hindu caste system’s “untouchable” society. However, the court’s decision now allows upper-caste groups to apply for reserves for the first time. As a result, critics fear that this new quota would be damaging to India’s most disadvantaged groups in terms of education and employment. Even if we analyse the national wide protest over delay in NEET PG counselling, there was a common claim made by opponents of caste-based reservations, and it implies that the presence of candidates from underprivileged caste communities in the medical profession, engineering profession, and elite educational campuses has reduced the “quality” of graduates and professionals in India. This is because, according to them, reservations signify that the majority of those people can attend these venues despite having inadequate “merit.”

Such claims are as ancient as the reservation scheme itself. Many of the underlying beliefs are as ancient as the caste system, which was used to reify an artificial hierarchy in the worth of human beings at the turn of the first century by those who placed themselves in the “higher” varnas. There is also a lesser minority of privileged-caste people who do not agree with the caste system’s hierarchical ideals but say that owing to reservations, those with insufficient “merit” obtain “unfair” privileges at the expense of “meritorious” others. Both of these points of view agree that in the absence of reservations, only the “best” applicants, with the most “merit,” regardless of caste or other backgrounds, would become physicians, engineers, administrators, and scientists. If some of the most fervent anti-reservation arguments are correct, the country will “prosper” once more under these conditions.

The realisation of Transformative Constitutionalism

The American academic Karl Klare coined the term “transformative constitutionalism” which signified “a long-term project of constitutional enactment, interpretations, and enforcement committed to… transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction.” To embrace the constitutional principles of justice, liberty, equality, and fraternity as stated in the Preamble, the ideology of transformative constitutionalism, therefore, contains a promise and a hope to alter, in this case, the Indian society. Therefore, it is necessary to approach this expression with a realistic mindset and be aware of modern reality.

Justice VR Krishna Iyer rightly pointed out “The authentic voice of our culture, voiced by all the great builders of modern India, stood for the abolition of the hardships of the pariah, the mleccha, the bonded labor, the hungry, hard-working half-slave, whose liberation was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made — the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.”

As per Hon’ble Justice Maheshwari, “the amendment does not violate the basic structure of the constitution because the reservation is based on economic criteria and the state has the right to do so. He said that reservation is an instrument of affirmative action which should ensure an “all-inclusive march towards [the] goals of [an] egalitarian society”. Going by this ruling would lead to a reduction in the reduction of humiliation that these communities are facing. Members of the SC/ST community commonly complain about being called insults like “sarkari damaad” at government offices (son-in-law of the government). Students from underrepresented groups have not been spared, not even in Delhi University’s prestigious women’s institutions. The Thorat Committee discovered such incidents during its probe of caste prejudice at the All India Institute of Medical Sciences (AIIMS) in New Delhi.

Going by the ruling of the Hon’ble Supreme Court in the Maratha case whereby struck down the findings of Justice N.G. Gaikwad Commission which led to the enactment of Maratha quota law and set aside the Bombay High Court judgment which validated the Maharashtra State Reservation for Social and Educationally Backward Classes (SEBC) Act of 2018, this only indicates Court’s willingness to adopt transformative constitutionalism. Court already discussed that “the Constitution is a living document and should respond to the nation’s need and interpret the law with pragmatism to further public welfare and to make the constitutional animations a reality”. There were no exceptional circumstances which were mentioned in Indira Sawhney’s judgement whereby reservation can cross the ceiling limit of 50%.

Concluding Remarks

Although it may be challenging to explain or define transformative constitutionalism, it is a process and an event that has contributed significantly to the definition of democracy and a constitution within it.  The current ruling has clearly explained the notion of transformative constitutionalism and would serve as a precedent in subsequent judgements. As elaborated by former South African Chief Justice, Justice Pius Langa, “transformation is not a temporary phenomenon that ends when we all have equal access to resources and basic services and when lawyers and judges embrace a culture of justification. Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant.”


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