Justice P.B. Sawant[1]
Question III :
If economic criterion by itself could not constitute a Backward Class under Article 16(4), whether reservation of posts in services under the State, based exclusively on economic criterion would be covered by Article 16(1) of the Constitution ?
493. While discussing Question No. I, it has been pointed out that so far as “backward classes” are concerned, clause (4) of Article 16 is exhaustive of reservations meant for them. It has further been pointed out under Question No. II that the only “backward class” for which reservations are provided under the said clause is the socially backward class whose educational and economic backwardness is on account of the social backwardness. A class which is not socially and educationally backward though economically or even educationally backward is not a backward class for the purposes of the said clause. What follows from these two conclusions is that reservations in posts cannot be made in favour of any other class under the said clause. Further, the purpose of keeping reservations even in favour of the socially and educationally backward classes under clause (4), is not to alleviate poverty but to give it an adequate share in power.
494. Clause (1) of Article 16 may permit classification on economic criterion. The purpose of such classification, however, can only be to alleviate poverty or relieve unemployment. If this is so, no individual or section of the society satisfying the criterion can be denied its benefits — and particularly the backward classes who are more in need of it. If, therefore, the backward classes within the meaning of clause (4) are excluded from the reservations kept on economic criterion under clause (1), it will amount to discrimination. Further, the objects of reservations under the two clauses are different. While those falling under clause (1) from other than the backward classes, will continue to enjoy the reservations for ever, the backward classes can get the benefit of the reservation under clause (4) only so long as they are not adequately represented in the services. What is more, those entering the services under clause (1) may belong to classes which are adequately or more than adequately represented in the services. The reservations for them alone under Article 16(1) would virtually defeat the purpose of Article 16(4) and would be contrary to it. No different result will, further, ensue even if the reservations are kept for all the classes since as pointed out above, all the seats will be captured only by the socially and educationally advanced classes. The two clauses of the Article have to be read consistently with each other so as to lead to harmonious results. Hence, so long as the socially backward classes and the effects of their social backwardness continue to exist, the reservations in services on economic criterion alone would be impermissible either under clause (4) or clause (1) of Article 16.
495. Hence no reservation of posts in services under the State, based exclusively on economic criterion would be valid under clause (1) of Article 16 of the Constitution.
Question IV :
Can the extent of reservation of posts in the services under the State under Article 16(4) or, if permitted under Articles 16(1) and 16(4) together, exceed 50% of the posts in a cadre or service under the State or exceed 50% of appointments in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in the different categories and grades of services under the State ?
496. It has already been pointed out earlier that clause (4) of Article 16 is not an exception to clause (1) thereof. Even assuming that it is an exception, there is no numerical relationship between a rule and its exception, and their respective scope depends upon the areas and situations they cover. How large the area of the exception will be, will of course, depend upon the circumstances in each case. Hence, legally, it cannot be insisted that the exception will cover not more than 50 per cent of the area covered by the rule. Whether, therefore, clause (4) is held as an exception to clause (1) or is treated as a more emphatic way of stating what is obvious under the said clause, has no bearing on the percentage of reservations to be kept under it. As Justice Hegde has stated in State of Punjab v. Hiralal; ((1971) 3 SCR 267 at 272), “the length of the leap to be provided depends upon the gap to be covered”. In Article 16(4) itself, there is no indication of the extent of reservation that can be made in favour of the backward classes. However, the object of reservation, viz., to ensure adequacy of representation, mentioned there, serves as a guide for the percentage of reservations to be kept. Broadly speaking, the adequacy of representation in the services will have to be proportionate to the proportion of the backward classes in the total population. In this connection, a reference may be made to the U.S. decision in Fullilove (1980 (65) Law Ed 2d 902) where 10% of the business was reserved for the blacks, their population being roughly 10 per cent of the total population. If the reservation is to be on the basis of the proportion of the population in this country, the backward classes being no less than 77-1/2 per cent (socially and educationally backward classes and Scheduled Castes and Scheduled Tribes taken together) the total reservation will have to be to that extent. It is not disputed that at present the reservations for the SCs/STs are roughly in proportion to their total population.
497. The adequacy of representation in administration is further to be determined on the basis of representation at all levels or in all posts in the administration. It is not only a question of numerical strength in the administration as a whole. It may happen that at the higher level there may be more representation for a class than at the lower level in terms of its population-ratio. This mostly happens with all the advanced classes. In that case, it cannot be said that the class in question is not represented adequately merely because the total representation Is not numerically in proportion to the population-ratio. On the other hand, it may happen, as it does so far as the representation of the backward classes is concerned, at the lower rungs they may be represented adequately or more than adequately. Yet at the higher rungs, their presence may be next to nil. In such cases, again, it cannot be said that the class is represented adequately. To satisfy the test of adequacy, therefore, what is necessary is an effective representation or effective voice in the administration, and not so much the numerical presence. It is instructive to note in this connection that Article 16(4) speaks of “adequate” and not proportionate representation. The practical question, therefore, is of the manner in which the adequate representation should be secured. Whatever the method adopted it has also to be, consistent with the maintenance of the efficiency of the administration.
498. In this connection, it will first be worthwhile to quote what Dr. Ambedkar had to say with regard to the extent of reservations contemplated under Article 16(4) (Constituent Assembly Debates, Vol. 7 (1948-49) pp. 701-702) :
“As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly 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. If honourable Members will bear these facts in the mind – the three principles, we had to reconcile, – they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of Article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now – for historical reasons – been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity ? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10 must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation.”
499. Articles 10(1) and 10(3) of the Draft Constitution corresponded to Articles 16(1) and 16(4) of the Constitution. When we realise that these are the observations of the Chairman of the Drafting Committee, the Law Member of the Government and the champion of the backward classes, it should give us an insight into the mind of the framers of the Constitution on the subject. It is true that the said observations cannot be regarded as decisive on the point. The observations probably also proceeded on the assumption that clause (4) of Article 16 was an exception of its clause (1), and had a numerical relationship with the rule. Whatever the case may be, the observations do give a perceptive and viable guidance to the policy that should be followed in keeping reservations, and in particular on the extent of reservations at any particular point of time. There is, therefore, much force in the contention that at least as a guide to the policy on the subject, the observations cannot be ignored.
500. Although the view expressed in Balaji (AIR 1963 Supreme Court 649) and Devasan (supra), that the reservation should not exceed 50 per cent does not refer to Dr. Ambedkar’s aforesaid observations and is, therefore, not based on it, and is based on other considerations, it cannot be said that it is not in consonance with the spirit, if not the letter, of the provisions.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448