Justice P.B. Sawant[1]
419. The various provisions in the Constitution relating to reservation, therefore, acknowledge that reservation is an integral part of the principle of equality where inequalities exist. Further they accept the reality of inequalities and of the existence of unequal social groups in the Indian society. They are described variously as “socially and educationally backward classes” (Article 15(4) and Article 340), “backward’ class” (Article 16(4)) and “weaker sections of the people” (Article 46). The provisions of the Constitution also direct that the unequal representation in the services be remedied by taking measures aimed at providing employment to the discriminated class, by whatever different expressions the said class is described. How does one identify the discriminated class is a question of methodology. But once it is identified, the fact that it happens to be a caste, race, or occupational group, is irrelevant. If the social group has hitherto been denied opportunity on the basis of caste the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination. When, in such circumstances, provision is made for reservations, for example, on the basis of caste, it is not a reservation in favour of the caste as a “caste” but in favour of a class or social group which has been discriminated against, which discrimination cannot be eliminated, otherwise’, What the Constitution forbids in discrimination “only” on the basis of caste, race etc. However, when the caste also happens to be a social group which is “backward” or “socially and educationally backward” or a “weaker section”, this discriminatory treatment in its favour, is not only on the basis of the caste.
420. The objectives of reservation may be spelt out variously. As the U. S. Supreme Court has stated in different celebrated cases, viz.; Oliver Brown et. al. v. Board of Education of Topeka et. al. (347 US 483 : 98 L Ed (873), Spottswood Thomas Bolling et. al. y. C. Melvin Sharpe et. al. (347 US 497 : 98 L Ed 884), Marco Defunis et. al. v. Charles Odegaard ((1974) 416 US 312 : 40 Law Ed 2d 164) Regents of the University of California v. Allan Bakke, (1978) 438 US 265 : 57 Law Ed 2d 750), H. Earl Fullilove et. al. v. Philip M. Klutznick, (1980) 448 US 448 : 65 Law Ed 2d 902), and Metro Broadcasting, Inc. v. Federal Communications Commission (1990) 111 Law Ed 2d 445 rendered as late as on June 27, 1990, the reservation or affirmative action may be undertaken to remove the “persisting or present and continuing effects of past discrimination”; to lift the “limitation on access to equal opportunities”; to grant “opportunity for full participation in the governance” of the society; to recognise the discharge “special obligations” towards the disadvantaged and discriminated social groups”; “to overcome substantial chronic under-representation of a social group”; or “to serve the important governmental objectives”. What applies to American society, applies ex proprio vigore to our society. The discrimination in our society is more chronic and its continuing effects more discernible and disastrous. Unlike in America, the all pervasive discrimination here is against a vast majority.
421. As has been pointed out earlier, our Constitution itself spells out the important objectives of the State Policy. There cannot be a more compelling goal than to achieve the unity of the country by integration of different social groups. Social integration cannot be achieved without giving equal status to all. The administration of the country cannot also be carried on impartially and efficiently without the representation in it all the social groups and interests, and without the aid and assistance of all the views and social experiences. Neither democracy nor unity will become real, unless all sections of the society have an equal and effective voice in the affairs and the governance of the country.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448