Justice P.B. Sawant[1]
Question VI:
Would making “any provision” under Article 16 (4) for reservation “by the State” necessarily have to be by law made by the legislatures of the State or by law made by Parliament? Or could such provisions be made by an executive order?
527. The language of Article 16(4) is very clear. It enables the State to make a “provision” for the reservation of appointments to the posts. The provision may be made either by an Act of legislature or by rule or regulation made under such Act or in the absence of both, by executive order. Executive order is no less a law under Article 13(3) which defines law to include, among other things, order, by-laws and notifications. The provisions of reservation under Article 16(4) being relatable to the recruitment and conditions of service under the State, they are also covered by Article 309 of the Constitution. Article 309 expressly provides that unit provision in that behalf is made by or under an Act of the appropriate legislature, the rules regulating the recruitment and conditions of service of persons appointed to Services under the Union or a State may be regulated by rules made by the President or the Governor as the case may be. Further, wherever the Constitution requires that the provisions may be made only by an Act of the legislature, the Constitution has in express terms stated so. For example, the provisions of Article 16(3) speak of the Parliament making a law, unlike the provisions of Article 16 (4) which permit the State to make “any provision”. Similarly, Articles 302, 304 and 307 require a law to be enacted by the Parliament or a State legislature as the case may be on the subjects concerned. Those are but some of the provisions in the Constitution, to illustrate the point.
528. The impugned orders are no doubt neither enactments of the legislature nor rules or regulations made under any act of the legislature. They are also not rules made by the President under Article 309 of the Constitution. They are undoubtedly executive orders. It is not suggested that in the absence of an Act or rules, the Government cannot make provisions on the subject by executive orders nor is it contended that the impugned orders made in exercise of the executive powers, have transgressed the limits of legislative powers of the Parliament. What is contended by Shri Venugopal is that the power to make provisions on such vital subject must be shared with, and can only be exercised after due deliberations by, the Parliament. The contention, in essence, questions the method of exercising the power and not the absence of it. The method should be left to the discretion and the policy of the Government and the exigencies of the situation. It may be pointed out that, so far the reservations made by the Central Government in favour of the SCs/STs and the State Governments in favour of all backward classes, have been made by executive instructions, or by rules made under Article 309 of the Constitution. No reservations have been made by Acts of legislatures. There is, therefore, no illegality attached to the impugned orders merely because the Government instead of enacting 4 statute for the purpose, has chosen to make the provisions by executive orders. Such executive orders having been made under Article 73 of the Constitution have for their operation an equal efficacy as an Act of the Parliament or the rules made by the President under Article 309 of the Constitution.
529. If any authority is needed for the otherwise self-evident proposition, one may refer to the following decisions of this Court where reservations made by executive orders were upheld : See Balaji (AIR 1963 Supreme Court 649) (supra), Mangal Singh v. Punjab State Chandigarh, (AIR 1963 Punjab and Haryana 306), Controller and Auditor General of India v. Mohan Lal Mehrotra, ((1992) 1 SCC 20).
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448