Justice R.M. Sahai [1]
744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (I) of Article 16. There are two views on this aspect. On a fuller consideration of the matter we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (i) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, – and not for all and sundry reasons – that any further reservations, of whatever kind, should be provided under clause (i). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a (sic) done upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.
745. For the reasons given in the preceding paragraphs, we must reject the argument that clause (1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not permit reservation of appointments/posts. As pointed out in para (54) the argument that no reservations can be made under Article 16(1) is really inspired by the opinion of Powell, J in Bakke ((1978) 57 Law Ed 2d 750). But in the very same paragraph we had pointed out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said contention. What kind of special provision should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation – subject, of course, to the observations in the preceding paragraph.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448