-Gary Jeffrey Jacobsohn
It is not often that the apex court of a nation explores the intricacies of constitutional identity while ruling in a specific case. On those rare occasions when this happens, we might expect that the justices who reflect on the concept will have done so absent any compelling requirement dictated by the facts before them. Rather, one could more easily imagine it happening when some aspect of a case provides an opening for judicial ruminations about a theoretical conundrum that is only tangentially related to the immediate issue being decided. Recently, however, the Indian Supreme Court ruled on the constitutionality of a constitutional amendment by invoking the identity question as a central and necessary component in their resolution of the case’s specific subject of legal contestation. That subject was the vexed matter of reservations policy, in particular the Parliament’s enactment in 2019 of the 103rd Amendment providing for reservations in higher education and public employment in accordance with economic criteria alone.
The decision in Janhit Abhiyan v. Union of India by a panel of five justices upheld the constitutionality of the amendment. A three-member majority validated the State’s extension of special provisions for the advancement of economically weak sections of the population (EWS) other than individuals in the caste-based classes already provided for in the Constitution’s existing language. In what follows I focus on two judicial opinions, a concurrence by Justice Pardiwala and the dissent by Justice Bhat, both of which gave extended consideration to the constitutional identity question, agreeing on its central importance for deciding the case, but differing as to its bearing on the decisional outcome. In India the status and significances of the ruling doubtless lie in its policy implications for addressing long-standing entrenched societal inequalities; in my case, as someone who has written extensively on the topic, the debate between these two justices is noteworthy for its illumination of the jurisprudential use of a concept that has in recent years attracted heightened interest in multiple venues of constitutional adjudication.[1]
The 103rd Amendment was challenged for its alleged violation of the Constitution’s “basic structure” which, as explained in Justice Maheshwari’s lead opinion, would mean, if accepted by the Court, that Parliament’s enactment had improperly changed the identity of the Constitution.[2] “Basic structure” has been variously understood over the years; the Justice’s usage appears heavily reliant on Justice Chandrachud’s opinion in Minerva Mills, Ltd. v. Union of India (“[T]he Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights is an essential feature of the basic structure of the Constitution.”)[3] While Justice Maheshwari’s opinion engages at various points with the identity question, its principal task is to address the specific constitutional objections to the amendment, especially as they pertain to the grievance concerning the exclusion of economically weaker citizens for whom reservations have already been provided in existing provisions related to lower caste status. Consonant with the emphatic affirmation of the constitutional framers’ prioritizing of the social revolution, the Justice argued at considerable length that the goal of an “economic democracy” legitimized the effort to incorporate all citizens of India within the meaning of Article 46’s directive to the State to “promote with special care the educational and economic interests of the weaker sections of the people….” – that the provision went on to specify the Scheduled Castes and Scheduled Tribes for particular attention did not preclude the State from creating a reservation classification for the exclusive benefit of those whose economic backwardness was unrelated to caste affiliation. Reviewing the relevant precedents, he concluded that “[t]his Court has not put a blanket ban on providing reservations for other sections [i.e., those not covered under Articles 15(4), 15(5), or 16(4)] who are disadvantaged due to economic conditions.”[4] And so, the “concept of distributive justice” means that “leaving one class of citizens to struggle because of inequalities in income and want of adequate means of livelihood may not serve the ultimate goal of securing all-inclusive socio-economic justice.”[5]
Equality and Constitutional Identity
The Pardiwala and Bhat opinions traverse this constitutional landscape as well, but they engage more deliberately with the identity question. As Justice Pardiwala wrote, “[I] have looked into the entire issue from a slightly different angle.”[6] His opinion and that of his dissenting colleague are in fundamental agreement about the Court’s role when confronted by a duly passed constitutional amendment that is in conflict with the requirements of “Basic Structure”[7] namely that the tribunal has the authority to invalidate it as an act that, in Justice Bhat’s words, “destroys or violates the identity of the Constitution.”[8] They also agree that at the core of this identity is the principle of equality, as it has been articulated previously by the Court. And so:
“The principle of equality is a delicate, vulnerable and supremely precious concept for our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the “basic structure” of the Constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way, may be changed within the constraints of the broader principle. The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity. It is not the introduction of significant and far-reaching change that is objectionable, rather it is the content of this change insofar as it implicates the question of constitutional identity.”[9]
What is it, then, about the content of the change embodied in the 103rd Amendment that leads these two justices to their different conclusions about the enactment’s impact on the Constitution’s identity? Three related conceptual precepts of constitutional identity help to explain how agreement on a principle – equality – that is “the heart and soul of the Indian Constitution”[10] could nevertheless culminate in sharp divergence over the legitimacy of an amendment ostensibly adopted to reinforce and advance the principle.
1) Constitutional identity emerges dialogically and represents a mix of political aspirations and commitments that are expressive of a nation’s past, as well as the determination of those within the society who seek in some ways to transcend that past. While this suggests a dynamic understanding of the phenomenon, the practical purpose to which the concept is frequently put – resisting radical change – entails a more static view than is otherwise warranted. (A good example of this dynamic understanding of constitutional identity in the Indian setting is the trilogy of cases beginning in 2009 and ending in 2018 involving the de-criminalization of homosexual conduct. The dialogical process by which the Court achieved resolution on this issue entailed making clear the connection between sexual orientation and caste, and more generally with the anti-subordination commitments of the Constitution.)[11]
2) Constitutional identity will to a large extent reflect how the essentials of constitutionalism combine and interact with the attributes of a constitution that are expressive of unique histories and circumstances. A constitutional amendment may therefore be considered problematic in one of two ways: a) The change it portends could subvert the fundamentals of constitutional government, at the core of which is the rule of law and the administration of impartial justice. b) The change it portends could substantially transform or negate a defining political commitment of the constitutional order that had been central to the nation’s self-understanding.
3) The general concept of identity is closely allied with the idea of continuity rather than transformation. Thus, the collective memories that persist as part of the cultural personality of a nation form the core of its identity, which is developed over time, evolving in tandem with the habits and experiences of the body politic. This places severe limits on change, particularly so for the essentials of constitutional identity. Yet, in the design of some constitutional orders, their framers – for example, South Africa – clearly intended the resultant documents to be transformational, even revolutionary. To the extent, then, that the constitutional “soul” in India was envisioned to be egalitarian, that is to say, confrontational and militant in relation to the social order within which it was embedded, the Indian case presents an interesting challenge to the dominant theory of identity.
This enumeration illuminates how the constitutionally amended special provision for EWS who do not qualify for the lower caste reservations established in the existing document (and upheld in numerous judicial decisions) gave rise to divergent identity-based outcomes. Again, both Pardiwala and Bhat subscribe to the theory of unamendability, according to which the constituted power of a state – in this case, the Indian Parliament – is not authorized to contravene the Constitution’s foundational structure created by the exertions of the original constituent power, i.e., the Constituent Assembly.[12] They also subscribe to a commonly held view that sees in the deliberations of that body the hopes for a radically transformed society.[13] Or as Jawaharlal Nehru put it, “[T]he Constitution…was meant to be a dynamic constitution.”[14]
But if this suggests agreement on “the larger purpose and principles that are the continuous and unalterable thread of constitutional identity”,[15] a close examination of the two opinions reveals that these principles are interpreted quite differently, such that the prospective change permitted by the amendment is viewed either as a radical repudiation of constitutional identity or as a faithful fulfilment of the radical potential embodied in that identity. Thus, Justice Bhat berates the Court for having “sanctioned an avowedly exclusionary and discriminatory principle”,[16] whose “impact destroys or violates the identity of the Constitution.”[17] By limiting reservations only to those belonging to forward classes or castes the amendment effectively negates a “central theme of the Constitution”,[18] namely the remedial commitment to undo centuries of injustice rooted in caste-based oppression. To be sure, the exclusion of the socially disadvantaged blatantly violates the formal requirements of equal treatment, but in this account, it also undermines one of the cardinal precepts of constitutional identity by severing the transformative aspect of the changes sought from the distinctive experience that is singularly expressive of the nation’s past. There is no other way to understand the dissent’s invocation of constitutional identity than to connect its egalitarian commitment to the unique socially hierarchical staple of Indian history. And so, “[W]hat begins as a seemingly innocuous alteration, may result in the ‘emasculation’ and ultimate annihilation of the grand principle of equality.”[19]
For Justice Pardiwala, on the other hand, this beginning needs to be pursued until the principle of equality, rightly construed substantively as the elimination of poverty for all the economically burdened citizens of the state, is achieved. As metaphorically rendered in a recent case cited in the dissent, “[I]t was recognized early on as we, as a nation-state, set sail that…revolutionary change, using the force and might of the State, might bring about the realization of [the] state of equality much faster.”[20] In this account,the Indian constitutional paradox, in which the defense of identity can occur only if consequential change happens, is here realized through an amendment that fittingly must be upheld against the objection that it violates the Constitution’s basic structure. Providing constitutional legitimacy for greater access to education and employment to the weaker sections of the population pursues the transformative directive of the Principles of State Policy, as outlined in Article 46, to promote the advancement of lower-status citizens. Upholding the amendment on basic structure grounds is then a calculated effort to give fuller meaning to what was at best only an inscribed embrace of revolutionary constitutional identity.
Consider now these alternative understandings of constitutional identity in light of precept 2 above. For Justice Bhat, the fatal flaw in the 103rd Amendment is that the change it signals contravenes an essential political commitment of the constitutional order that had been dominant in the nation’s self-understanding. To be sure, poverty and deprivation afflict all sectors of society, but “[i]n the case of members of communities which faced continual discrimination – of the most venial form, poverty afflicts in the most aggravated form.”[21] While there are policies for the alleviation of the poverty experienced by members of the forward castes that are constitutionally unproblematic and fully within the aspirational ambit of Article 46, the exclusionary requirements of the amendment are “offen[sive] [to] the very identity of the Constitution.”[22] Basic structure values, including social and economic justice, “are eternal to every democracy”,[23] but the pursuit of such values may not violate basic structure ideals that are specific to this democracy.
Justice Pardiwala’s embrace of a broader use of the amendment power is not insensitive to the endemic particulars of Indian inequality. His presumption, however, is that the theory of unamendability should not be construed to inhibit change that is mostly consistent with the larger egalitarian vision of the Constitution. Constitutional identity is not a static thing; that caste-based oppression presents the equality code with its most deeply rooted challenge should not preclude the flexibility necessary for an expansion through the identity dynamic that is crucial to the concept rightly understood. “The recurring feature of such constitutional progression is the Parliament’s freedom and liberty from the ‘original intent doctrine. It is the same theme that enables the Parliament to constantly innovate and improvise to better attend to the Directive Principles’ mandate of Articles 38 & 46…or of the equality code itself.”[24]
In brief, then, the Pardiwala/Bhat disagreement on the question of constitutional identity amounts to this: for Bhat, there are principles that embody precepts of political morality rooted in a nation’s past, that possess a certain sovereign distinctiveness whose meaning derives from experience within a specific political and cultural context, and whose reach may not extend beyond that local context. Other principles make a claim of universality, such that the moral truths they are said to embody are precisely the ones whose recognition is required for a constitution to exist in more than name only.[25] They incorporate attributes that are essential for identifying any specific constitution as being in compliance with general norms of constitutionalism. And so, for Pardiwala, these principles mandate “achieving a larger, fundamental standard of equality.”[26]
The Best Outcome?
Any assessment of the decision and opinions in Janhit Abhiyan v. Union of India[27] will mainly hinge on the assessor’s stake in the case outcome. For those standing to benefit from the EWS policy upheld by the Court, the arguments by the majority justices will surely be seen as exemplary of judicial statesmanship. Just as assuredly, the views expressed in the dissent will strike a receptive chord among those whose exclusion from the policy on the basis of their social identity leaves them with one less opportunity for enhancing their economic prospects. But for those of us with no stake in the outcome, and with the luxury of reflecting on this fascinating case from a distance, an assessment need not culminate in a preference ordering of the several opinions. Rather, it is perhaps best realized with an appreciation of the finer points adduced in the divergent arguments and a recognition that there is something important to be learned from the very existence of this divergence. Such, at least, is the indisputable conclusion one would doubtless reach if the assessment were abstracted from the socio/political contexts in which constitutional deliberation inescapably occurs.
In their reflections on constitutional identity, the Janhit Abhiyan[28] justices agreed on the constitutive significance of broad principles – the first among which is equality – but differed with respect to the way these principles should be understood. Like all constitutions, India’s is composed of disharmonic elements that can produce contrasting interpretations of specific provisions as well as the larger question of identity. Indeed, the dynamic aspect of constitutional identity is largely fueled by efforts to reconcile the tensions embodied in documents that reflect the competing visions of their framers. As Justice Pardiwala noted, “If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction.”[29] But such constructions can go in different directions, as judges attach more or less significance to the disharmonic components; for example, formal or substantive equality, caste or class, and so on.
The debate over reservations policy and Indian constitutional identity should therefore be distinguished from those contests that require a decisive declaration of winners and losers. The principled articulations in the Pardiwala and Bhat opinions provide plausible and genuine teachings whose persuasive power will vary with time and circumstance. As the German constitutional theorist, Robert Alexy has argued, “[P]rinciples are norms which require that something be realized to the greatest extent possible given the legal and factual possibilities.”[30] Among the challenges presented by the prevailing reality of law and fact is the possibility that principles will be in competition with one another.
“If two principles compete, for example, if one principle prohibits something and another permits it, then one of the principles must be outweighed. This means neither that the outweighed principle is invalid nor that [unlike in the conflict of rules] it has to have an exception built into it. On the contrary, the outweighed principle may itself outweigh the other principle in certain circumstances. In other circumstances, the question of precedence may have to be reversed.”[31]
And so we should be grateful to the justices in Janhit Abhiyan v. Union of India;[32] their thoughtful engagement with the constitutional identity question provides insights of value that transcend the politics and interests of the moment
[1] See generally, Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press 2010). For the concept’s application to India, see my entry, Gary Jeffrey Jacobsohn, ‘Constitutional Identity’ in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), Oxford Handbook to the Indian Constitution (Oxford University Press 2016). Elsewhere, particularly in Europe, constitutional identity is being invoked in courts – notable in Hungary and Poland – to resist the efforts of the European Union to enforce liberal constitutionalist principles in the member states. I have discussed these concerning developments in the essay, Gary Jeffrey Jacobsohn, ‘The Exploitation of Constitutional Identity’ in Kriszta Kovacs (ed), National Identity: The Jurisprudence of Particularism (Hart Publishing, forthcoming 2023). [2] Janhit Abhiyan v. Union of India (2022) SCC OnLine SC 1540 [4]. [3] Minerva Mills Ltd. V. Union of India AIR 1980 SC 1789 [56], [37.3]. [4] Janhit Abhiyan (n 2) [73]. [5] ibid [74.1.1]. [6] ibid [4]. [7] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. [8] Janhit Abhiyan (n 2) [26]. [9] Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 [118]. Elsewhere I have argued that the principle of equality is at the core of the Constitution’s commitment to secularism, which the Indian Supreme Court has certified as a constituent component of the document’s basic structure. (S.R. Bommai v. Union of India (1994) 3 SCC 1). Thus, what I refer to as “ameliorative secularism” expresses the idea that this commitment cannot be separated from the framing objective of eliminating inequalities related to religiously derived injustice. So deep was religion’s penetration into the fabric of Indian life, and so historically entwined was it in the configuration of a social structure that was by any reasonable standard grossly unjust, that the framers’ hopes for a democratic polity meant that State intervention in the spiritual domain could not be constitutionally foreclosed. See Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton University Press 2003). [10] Janhit Abhiyan (n 2) [271]. [11] See on this point, Sujit Choudhry, ‘How to Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights and Dialogical Interpretation,’ in Sunil Khilnani, Vikram Raghavan, and Arun Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University Press 2013). [12] The theory has been developed and elaborated in Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press 2017). The Supreme Court has followed the German example by in effect arrogating to itself a supervisory role over any codified transformation that threatened regime essentials. [13] As Granville Austin argued, “[T]he social revolution was put at the top of the agenda by the Constituent Assembly.” Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966), xvii. [14] Parliamentary Debates V. xii-xiii, Pt. 11, 8820-22, 5/16/1951 in Subhash C Kashyap (ed), Jawaharlal Nehru and the Constitution (Metropolitan Book Co Pvt Limited 1982) 147. [15] Ashok Kumar Thakur (n 10). [16] Janhit Abhiyan (n 2) [1]. [17] ibid [26]. [18] ibid [52]. [19] ibid [175]. [20] Indian Medical Association & Ors v Union of India & Ors (2011) SCC 7 [100]. [21] Janhit Abhiyan (n 2) [99]. [22] ibid [99]. [23] ibid [147]. [24] ibid [68]. [25] I have elaborated on this distinction in Gary Jeffrey Jacobsohn, ‘Constitutional Values and Principles’ in Michel Rosenfeld and Andres Sajo (eds), Oxford Handbook in Comparative Constitutional Law (Oxford University Press 2012). [26] Janhit Abhiyan (n 2) [184]. [27] ibid. [28] ibid. [29] ibid [87] [30] Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2010) 47. [31] ibid 50. [32] Janhit Abhiyan (n 2).
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