Kuldip Singh, J.[1]
353. The expression “……any backward class of citizens ……”in Article 16(4) of the Constitution as understood till date means ‘socially and educationally backward class’. In Janki Prasad Parimoo v. State of Jammu and Kashmir, (1973) 3 SCR 236 Palekar, J. observed as under :-
“Article 15(4) speaks about “socially and educationally backward classes of citizens”. While Article 16(4) speaks only of “any backward class of citizens”. However, it is now settled that the expression “backward class of citizen” in Article 16(4) means the same thing as the expression “any socially and educationally backward classes of citizens” in Article 15(4)”.
Mr. N.A. Palkiwala contended that the above quoted assumption by Palekar, J. was without any basis and wholly unjustified. According to him it was no settled by any judgment of this Court that the two expressions in Articles 15(4) and 16(4) mean the same thing. Far from being “settled”, no judgment of this Court had even suggested prior to 1973 that the expressions in the two Articles meant the same thing. He further contended that unfortunately, in subsequent cases it was not pointed out to this Court that the assumption of Palekar, J. was not correct and the wrong assumption of the learned Judge passed as correct. According to him an erroneous assumption, even by a Judge of this Court, cannot and does not make the law. This Court in M.R. Balaji v. State of Mysore, (1963) Supp 1 SCR 439 speaking through Gajendragadkar, J. observed as under :
“Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Article 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Article 15(4), reservation made under Article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Article 15(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary.”
Although in Balaji’s case this Court observed “what is true in regard to Article 15(4) is equally true in regard to Article 16(4)” but this was entirely in different context. In the said case reservations made in the educational institutions under Article 15(4) were challenged on the ground that the same were void being violative of Articles 15(1) and 29(2) of the Constitution. In the above quoted observations this Court indicated that the reservations made under Article 16(4) can also be challenged on the same or similar grounds as the reservations under Article, 15(4) of the Constitution of India. This Court did not examine the question as to whether the expression “backward class of citizens” in Article 16(4) means the same thing as the expresssion “any socially and educationally backward classes of citizens” under Article 15(4).
354. Articles 340 and 16(4) were in the original Constitution. Article 15(4) was inserted a year later by the Constitution First Amendment Act, 1951. Article 340 refers to “socially and educationally backward classes”. The Framers of the Constitution did not, however, use the expression “socially and educationally backward” in Article 16(4). The definition of ‘backward classes’ as socially and educationally backward in Article 340, may have given rise to the assumption that it was not necessary to re-define the expression ‘backward class’ in Article 16(4). Be that as it may the fact remains that there is no reasoned judgment of this Court holding that the two expressions mean the same thing.
355. The same Constituent Assembly, which drafted the original Constitution, drafted Article 15(4) and brought it into the Constitution by way of Constitution First Amendment Act, 1951. Article 340 defining ‘backward classes’ was already in the original Constitution but in spite of that the Constituent, Assembly defined the ‘backward classes’ for the purpose of Article 15(4) as “socially and educationally backward”. It was, therefore, not the intention of the Framers of the Constitution to follow the definition given in Article 340, whereever the expression ‘backward class’ occurs in the Constitution. On the other hand it is plausible to assume that wherever the Framer of the Constitution wanted the ‘backward classes’ to be defined as “socially and educationally backward”, they did so, leaving Article 16(4) to be interpreted in its context.
356. Articles 340 and 15(4) are part of the same Constitutional-Scheme. Socially and educationally backward classes may be identified by a commission appointed under Article 340 and the said commission-after investigation may make recommendations, including the sanctioning of grants, for the uplift of the backward classes. Article 15(4) makes it possible to implement the recommendations of the commission and for that purpose permits protective discrimination by the State. Since there is identity of purpose between the two Articles the ‘backward class’ in the context of these Articles has been defined identically. But that is not true of Article 15(4) and 16(4). When these two Articles of Constitution in juxtaposition enacted in consecutive years use markedly different phraseology, well established canons of interpretation dictate that such meanings should be assigned to the words as are indicated by the difference in phraseology. Article 16(4) has different purpose than Article 15(4). The subject-matter of Article 16(4) is the service under the State. It is a special provision enabling the State to make any provision for the reservation of appointments or posts in favour of the backward section of any class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The expression “backward” in the context of Article 16(4) is entirely different than the expression “socially, and educationally backward class” in Article 15(4). Under Article 16(4) the backward class has to be culled-out from amongst the classes which are not adequately represented in the State Services. Any species of backwardness in relevant in the context of Article 16(4). By contrast, any special provisions to be made under Article 15(4) – e.g grants out of the public exchequer – can only be made for “socially and educationally backward classes”. What is to be identified under Article 16(4) is not the “backward class” but a “class of citizens” which is inadequately represented in the State-services. On the other hand it is the “backward class” which is to be identified under Article 15(4). When the two classes to be identified in the two articles are different the question of giving them the same meaning does not arise.
357. Constituent Assembly debates Volume 7 (1948-1949) pages 684 to 702 contains the speeches of stalwarts like R.M. Nalavade, Dr. Dharma Prakash, Chandrika Ram, V.I. Muniswamy Pillai, T. Channiah, Santanu Kumar Das, H. J. Khandakar, Mohd. Ismail Sahib, Hukum Singh, K.M. Munshi, T.T. Krishnamachari, H.V. Kamant and Dr. B.R. Ambedkar on the draft Article 10(3) [corresponding to Article 16(4)]. In a nut-shell the discussion projected the following view-points :
(1) The original draft Article 10(3) did not contain the word ‘backward’. The original Article only contained the expression “any class of citizens”. The word “backward” was inserted by the Drafting Committee at a later stage.
(2) The opinion of the members of the Constituent Assembly was that the word “backward” is vague, has not been defined and is liable to different interpretations. It was even suggested that ultimately the Supreme Court would Interpret the same. Mr. T.T. Krishnamachari even stated in lightertone that the loose drafting of the chapter on fundamental rights would be a paradise for the lawyers.
(3), Not a single member including Dr. Ambedkar gave even a suggestion that “backward class” in the said Article meant “socially and educationally backward”.
(4) The purpose of Article 10(3) according to Dr. Ambedkar was that “there must at the same time be a provision made for the entry of certain communities which have so far been outside the Administration……. that there shall be reservations in favour of certain communities which have not so far had a proper “look-in” so to say into the Administration”.
(5) According to Dr. Ambedkar the said Article was enacted to safe guard two things namely the principle of equality of opportunity and to make provision for the entry of certain communities which have so far been outside the Administration. Dr. Ambedkar further stated :
“Unless you use some such qualifying phrase as “backward” the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word “backward” which, I admit, did not originally find a place in the fundamental rights in the way in which it was passed by this Assembly”.
358. The reading of the Constituent Assembly Debates makes it clear that the only object of enacting Article 16(4) was to give representation to the classes of citizens who are inadequately represented in the services of the State. The word “backward” was inserted later on only to reduce the number of such classes who are inadequately represented in the services of the State. The intention of the Framers of the Constitution, gathered from the Constituent Assembly Debates, leaves no manner of doubt that the two “classes” to be identified in the two articles are different and as such the expressions used in the two articles cannot mean the same. Article 16(4) enables the State to make reservations for any backward section of a class which is inadequately represented in the services of the State. Almost every member who spoke on the draft Article 10(3) in the Constituent Assembly complained that the word “backward” in the said Article was vague and required to be defined but in spite of that. Dr. Ambedkar in his final reply did not say that the word “backward” meant “socially and educationally backward”, rather he gave the explanation, quoted above which supports the reasoning that the word “backward” was inserted in Article 16(4) to identify the backward section of any class of citizens which is not adequately represented in the State Services and for no other purpose.
359. I, therefore, hold that the expression “backward class of citizens” under Article 16(4) does not mean the same thing as the expression “any socially and educationally backward classes of citizens” in Article 15(4). The judgments of this Court wherein it is assumed that the two expressions in Articles 15(4) and 16(4) mean the same thing do not lay down correct law and are overruled to such extent.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448