Sudhir Krishnaswamy, writing in The Telegraph (January 31, 2006) puts forward two plausible arguments that the 93rd Amendment Act violates the "basic structure" of the Constitution:
and concludes that the 93rd Amendment Act will probably survive the "basic structure" test.
- The first argument against the amendment is that it destroys the basic feature of equality. The apex court has reiterated in the recent Mandal commission case (1994) when dealing with reservation in public employment that 'equality' is a basic feature of the Constitution. The Mandal commission ruling is not clear about the precise limits to state action that equality as a basic feature entails. As basic structure review operates at a permissive 'damage or destroy' standard, petitioners will have to show that the reservation amendment eviscerates the concept of equality in the Constitution.
As the Constitution adopts a concept of equality which permits special provisions for SC/ST and OBCs as valid derogations from a symmetrical equal treatment principle, this is a difficult argument to sustain. Such a low standard of scrutiny in basic structure review may seem incongruous, but considering that this is an exceptional power of judicial review where the court safeguards abstract constitutional values, the court's deference to the legislature's mode of setting out the equality principle is more appropriate. So basic structure review on equality grounds may fail to satisfy the 'damage or destroy' standard.
- The second argument against the reservation amendment is that it fails to respect the division between the state sector and private sector. This argument would have to persuade the court to recognize a new basic feature: namely, the separation of state action from private action. It is clearly open to the court to do so as basic features are an open catalogue which may be expanded or modified through the common law method proceeding on a case-by-case basis. The right to associate freely [Article 19(1)(c)], read with the right to carry on any occupation, trade or business, or to practice any profession [Article 19(1)(g)] suggest that citizens enjoy the freedom to conduct their life as they choose to. This liberty is best illustrated by contrasting it with the constitutional obligations of the state to act within the fetters cast upon it by the fundamental rights of citizens (Article 13). These provisions read together suggest that the state/private distinction is a basic feature of our constitutional design. However, our Constitution does not maintain this distinction throughout. It clearly prohibits the practice of untouchability between private persons (Article 17) and imposes several fundamental duties on citizens, including the duty to abide by the Constitution (Article 51A (a)). The court has on previous occasions, as with sexual harassment, held that individual citizens may be required to respect the constitutional rights of citizens.
On balance, the court will assess whether the state/private distinction stands with democracy, equality and secularism as an inviolable constitutional principle or whether it is an important but malleable principle. In the last fifty years, the Supreme Court has interpreted the state action doctrine to include, and exclude, a wider range of public and private authorities against whom administrative law standards and rights guarantees are enforced. The most charitable understanding of this body of law would conclude that this area is in flux. In these circumstances, the court could refrain from anointing the state/private distinction as a basic feature of the Constitution.
Affirmative action politics in India is obsessed with quotas. Political parties vie with each other to expand quotas to newer arenas for an ever-expanding category of beneficiaries. It may be shown that this policy neither advances the interests of its beneficiaries nor that of the nation. But bad policy is not always 'bad' legally. One would therefore not be wrong to conclude that the 104th Constitution Amendment Act 2005 should survive the Supreme Court's basic structure review and be declared constitutional.
We will have to wait to find out the judiciary's interpretation of whether the 93rd constitution amendment violates the "basic structure" of the constitution.