Equality of Opportunity, Group Subordination, and the Directive Principles: State of Kerala vs N.M. Thomas

The history of the Supreme Court’s Article 16 jurisprudence – or, as it is commonly identified, its “reservation jurisprudence” – is the history of a struggle between two competing visions of equality. In 1975, the Court decisively embraced one vision, and rejected the other. More than forty years after, however, the transformative character of that judgment has yet to be articulated. That is the task of this essay. I shall begin with a survey of a few of the Supreme Court’s initial judgments on Articles 15 and 16. In its first two decades, the Court held that Articles 15(1) (non-discrimination) and 16(1) (equality of opportunity) pulled in opposite directions from Articles 15(4) and 16(4) (that allowed class-based affirmative action). The latter were constitutionally-mandated “exceptions” to the equality code, which had to be interpreted narrowly and in a limited fashion (I). In State of Kerala vs N.M. Thomas, however, a closely divided Supreme Court reversed that view. In their complementary majority opinions, Justices Mathew and Krishna Iyer advanced a vision of equality according to which individual disabilities were embedded in class identity, and consequently, within a set of social hierarchies that the Constitution’s equality code was created to surmount (II). After discussing the judgment(s) in N.M. Thomas, I will articulate and defend the transformative understanding of equality that emerges out of a combined reading of the majority opinions. According to this understanding, the group-oriented reservation provisions under Articles 15(4) and 16(4) were not exceptions to, but facets of, the individual non-discrimination and equality guarantees under Articles 15(1) and 16(1). How did the Court reconcile this dichotomy between the individual and the group? It did so through the insight that while the Constitution remained committed to the individual, the historical and social character of inequality in India was constituted by group membership; or, in other words, for an individual, “differential access to life chances corresponded in large measure to membership in different communities.” To take community membership into account, therefore, was not to depart from the principle of individual equality, but to abide by it in its deepest sense. This, I will argue, was consistent with the political understanding of inequality that led up to, and ultimately culminated in, the framing of the Constitution. (III) N.M. Thomas was transformative in a second, important way: it was the first judgment to articulate the role of Part IV of the Constitution – the Directive Principles of State Policy – as a system of framework values that gave life to the abstract concepts outlined in the fundamental rights chapter. In the concurring opinions of Justices Mathew and Krishna Iyer, it was the Directive Principles that provided the justification for why the constitutional vision of equality was sensitive to group disadvantage. It is this reasoning, I will argue, that – for the first time – accurately captured the relationship between the enforceable fundamental rights of Part III, and the non-enforceable constitutional values of Part IV. (IV) I will conclude by arguing that the vision of equality articulated in N.M. Thomas was not merely of academic or philosophical interest; but rather, had – and continues to have – the potential to transform how the law addresses subtle and often hidden social hierarchies. (V).