Equality, affirmative action and the impact of privatisation

Indian Constitutional Law - New Challenges · Unit II · Topic 8 of 21 · 6 min read

Substantive equality and reservation from Indra Sawhney to the EWS and sub-classification judgments, and what happens to the State's affirmative action duty when jobs and education move into private hands.

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On this page

1. Formal and substantive equality
2. The constitutional provisions
3. The case law, compressed
4. The impact of privatisation
5. Comparative and international perspective
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Two questions have been set: “Discuss the impact of privatisation on the State’s affirmative action for achieving equality” (April 2024) and a short note on “Right to equality and privatisation” (January 2024). Both need the doctrine of reservation in compressed form and then the real argument: reservation is a duty of the State, and the State is shrinking.

1. Formal and substantive equality

Formal equality treats likes alike and bars classification that is not reasonable (the twin test of intelligible differentia and rational nexus under Article 14). Substantive equality asks whether the law corrects existing disadvantage. The Indian Constitution chose the second for historically disadvantaged groups. In State of Kerala v. N.M. Thomas (1975) the Court read Article 16(4) as a facet of Article 16(1), not an exception to it, a view adopted in Indra Sawhney. Marc Galanter’s Competing Equalities (1984) remains the standard study of the tension between compensatory discrimination and merit, and between caste groups and individuals as the unit of justice.

2. The constitutional provisions

Article 15(4) (First Amendment, 1951): special provisions for socially and educationally backward classes, SCs and STs.
Article 15(5) (93rd Amendment, 2005): reservation in admission to educational institutions, including private institutions whether aided or unaided, except minority institutions under Article 30(1).
Articles 15(6) and 16(6) (103rd Amendment, 2019): up to ten per cent for economically weaker sections not covered by existing reservations.
Article 16(4): reservation of appointments or posts for backward classes inadequately represented in the services of the State; 16(4A) promotion with consequential seniority for SCs and STs (77th and 85th Amendments); 16(4B) carry forward of unfilled vacancies (81st Amendment); proviso to Article 335 on relaxation of qualifying marks (82nd Amendment).
Article 46: the directive to promote the educational and economic interests of the weaker sections.

3. The case law, compressed

Indra Sawhney v. Union of India (1992), nine judges: OBC reservation upheld; caste may be the basis for identifying a backward class; the creamy layer must be excluded; total reservation should not ordinarily exceed fifty per cent; no reservation in promotion (overcome by the 77th Amendment); reservation on purely economic criteria struck down.
M. Nagaraj v. Union of India, 2006 INSC 711, (2006) 8 SCC 212: Articles 16(4A) and 16(4B) upheld, but the State must show backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotion.
Jarnail Singh v. Lachhmi Narain Gupta, 2018 INSC 881: Nagaraj was wrong to require quantifiable data on the backwardness of SCs and STs; but the creamy layer principle may apply to them in promotions.
Ashoka Kumar Thakur v. Union of India, 2008 INSC 473: Article 15(5) and the central OBC quota in higher education upheld for State-maintained and aided institutions; the question of private unaided institutions left open.
Pramati Educational and Cultural Trust v. Union of India, 2014 INSC 362: Article 15(5) upheld for private unaided institutions as well; it does not violate the basic structure.
Janhit Abhiyan v. Union of India, 2022 INSC 1175: by 3:2 the EWS amendment upheld. Economic criteria alone may found reservation; the fifty per cent ceiling is not inflexible and applies to reservations for backward classes, not to the new EWS category; excluding SC/ST/OBC from EWS was upheld by the majority and held discriminatory by the minority.
State of Punjab v. Davinder Singh, 2024 INSC 562: by 6:1 a seven-judge Bench held that States may sub-classify Scheduled Castes to give preference to the more backward among them, overruling E.V. Chinnaiah v. State of A.P. (2005). Several judges urged that the creamy layer exclusion be extended to SCs and STs. Bela Trivedi J dissented.

4. The impact of privatisation

Articles 15(4) and 16(4) are addressed to the State. Article 16 concerns “employment or appointment to any office under the State”. Every step of privatisation therefore removes something from the reach of affirmative action:

Fewer reserved posts. Disinvestment of public sector undertakings ends reservation in their employment once they cease to be State under Article 12 (previous note). Contractual and outsourced engagement within government (through agencies) is generally outside reservation rules.
The private labour market has no reservation. Article 16 does not apply. Attempts by States to reserve private jobs for local residents, such as the Haryana State Employment of Local Candidates Act, 2020, were struck down by the Punjab and Haryana High Court in 2023 as violating Articles 14, 16 and 19; that was domicile-based, but it shows the constitutional difficulty of imposing quotas on private employers.
Education is the exception. Article 15(5), upheld in Pramati, lets the State require private unaided institutions (other than minority institutions) to reserve seats, and section 12(1)(c) of the RTE Act requires private schools to admit disadvantaged children. Higher education in practice has moved largely to private institutions, and Article 15(5) is the constitutional tool for following it, though many States have not legislated under it.
Equality of opportunity becomes market-dependent. Where public provision recedes, access to quality schooling, healthcare and jobs depends on capacity to pay, which reproduces caste and class disadvantage. This is the substantive equality objection to privatisation.

What the examiner wants you to propose. Options that are constitutionally viable: (a) legislation under Article 15(5) for private higher education; (b) supplier diversity and public procurement preferences for SC/ST entrepreneurs, which the Union already uses for small enterprises; (c) affirmative action conditions in licences, land allotments and PPP concessions given by the State; (d) voluntary diversity codes and disclosure by listed companies; (e) a statute on private-sector employment, which would need to survive Article 19(1)(g) and is more likely to succeed if it uses incentives rather than quotas. State that direct quotas on private employers would be open to challenge under Article 19(1)(g) and Article 14.

5. Comparative and international perspective

International law permits and in some cases requires special measures: Article 1(4) and Article 2(2) of ICERD (1965), and Article 4(1) of CEDAW (1979) on temporary special measures.
United States: Regents of the University of California v. Bakke (1978) struck down racial quotas but allowed race as a factor; Grutter v. Bollinger (2003) upheld a individualised admissions plan; Students for Fair Admissions v. Harvard (2023) held race-conscious admissions at Harvard and the University of North Carolina to violate the Equal Protection Clause and Title VI. US affirmative action in private employment rests on statute and executive orders, not the Constitution.
South Africa: section 9(2) of the Constitution permits measures to advance persons disadvantaged by unfair discrimination, and the Employment Equity Act, 1998 imposes affirmative action plans on designated private employers, the clearest model for private-sector affirmative action.

How this is examined

For the long answer: substantive equality, the provisions, the case law in a paragraph each, then the four impacts of privatisation, the policy options and the comparative material. For the short note on “Right to equality and privatisation”, combine Article 12 (who is bound) with Article 15(5) (how the State can reach private education) and one comparative point.

Now try the real questions: Indian Constitutional Law - New Challenges past question papers.