Justice R.M. Sahai [1]
561. Article 16(1) is a right created constitutionally in favour of all citizens and anyone is entitled to approach the courts against violation of his right by the State and assail State’s latitude in remedial measures or affirmative action to improve conditions of weaker sections or improve, lot of the backward class, if they are not so, ‘tailored’ as not to transgress the constitutional permissible limits. Any State action whether “affirmative’ or ‘benign’, ‘protective’ or ‘competing’ is constitutionally restricted first by operation of Article 16(4) and then by interplay of Articles 16(4) and 16(1). State has been empowered to invade the constitutional guarantee of ‘all’ citizens under Article 16(1) in favour of ‘any’ backward class of citizens only if in the option of the Government it is inadequately represented. Objective being to remove disparity and enable the unfortunate ones in the society to share the services to Secure equality in, ‘opportunity and status’ any State action must be founded on firm evidence of clear and legitimate identification of such backward class and their inadequate representation. Absence of either renders the action suspect. Both must exist in fact to enable State to assume jurisdiction to enable it to take remedial measures. ‘Power to make reservations as contemplated by Article 16(4) can be exercised only to make the inadequate representations in the services adequate’.
Use of expression, ‘in the opinion of State’ may result in greater latitude to State in determination of either backwardness or inadequacy of representation and sufficiency of material or mere error may not vitiate as State may be left in such field to experiment and learn by trial and error with little interference from the Court but if the principle of identification itself is invalid or it is in violation of constitutionally permissible limits or if instead of carefully identifying the characteristics which could clothe the State with remedial action it engages in analysis which is illegal and invalid and is adopted not for remedial purposes but due to extraneous considerations then the Court would be shirking in their constitutional obligation if they fail to apply the corrective. Statutes’ latitude is further narrowed when on existence of the two primary, basic or jurisdictional facts it proceeds to make reservation as the wisdom and legality of it has to be weighed in the balance of equality pledged and guaranteed to every citizen and tested on anvil of reasonableness to ‘smoke out’ any illegitimate use and restrict the State from crossing the clear constitutional limits. ‘In framing a Government which is to be administered by men over men, the great difficulty lies in this, you must first enable the Government to control the governed, and in the next place oblige it to control itself’. Judicial Review has come to be one of the ways of obliging Government to control itself.’ A reservation for a class which is not backward would be liable to be struck down. Similarly if the class is found to be backward but it is adequately represented the power cannot be exercised. Therefore, the exercise of power must precede the determination of these aspects each of which is mandatory. Since the exercise of power depends on existence of the two, its determination too. must satisfy the basic requirement of being in accordance with Constitution, its belief and thought. Any determination of backward class in historical perspective may be legally valid and constitutionally permissible. But if in determination or identification of the backward class any constitutional provision is violated or it is contrary to basic feature of Constitution then the action is rendered vulnerable.
562. Reservation being negative in content to the right of equality guaranteed to every citizen by Article 16(1) it has to be tested against positive right of a citizen and a direct restriction on State power. Judicial review, thus, instead of being ruled out or restricted is imperative to maintain the balance. The Court has a constitutional obligation to examine if the foundation for State’s action was within constitutional periphery and even if it was, did the Government prior to embarking upon solving the social problem by raising, ‘narrow bridge’ under Article 16(4), to enable the ‘weaker sections of the people to cross the rubicon’*24 discharged its duty of a responsible Government by constitutional method so as to put it beyond any scrutiny by the ‘eye and ear’ of the Constitution. What comes out of preceding discussion can be reduced thus :
(i) (a) Identification of backward class of persons and their inadequate representation in service are the basic or jurisdictional facts to empower the State to exercise the power of reservation.
(b) Either of the conditions precedent are assailable and are subject to judicial review
(ii) Reservation of appointments and posts under Article 16(4) can be challenged if it is constitutionally invalid or even if it disturbs the balance of equality guaranteed under Article 16(1) for being unreasonable or arbitrary.
(iii) Burden to prove that reservation does not violate constitutional guarantee and is reasonable is on the State.
563. Our Constitution like many modern constitutions was also, a ‘break with the past’ and was framed with, ‘a need for fresh look”. Centuries of deliberate and concerted effort to deface the society by creating caste consciousness, exploiting religious sentiments was attempted to be effeced by ‘The People’ when they resolved to constitute the country into a secular democratic republic. Preamble of the Constitution, echoing sentiments of nation, harassed for centuries by foreign domination, ‘to secure, to all its citizens justice, social economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity and to promote among them all Fraternity assuring dignity of the individual’ was not a mere flourish of words but was an ideal set-up for practice and observance as a matter of law through constitutional mechanism. Communal reservations were outlawed both from governance and administration. States and governments were prohibited from practising race, religion or caste in any form by Articles 15(1), 16(2) and 29(2). Classification made on religion, race and caste was held-to be ‘opposed to the Constitution and constitutes a clear violation of the fundamental rights.’ New begining was made by abolishing untouchability, prohibiting exploitation and guaranteeing equality not only before law, but in public services and employment both substantive and protective. Concern was shown for weaker sections of the society and backward class of citizens. Article 16(4) was in keeping with this philosophy. Reservation for ‘any’ backward class of citizens in services of the State was visualised as an integral part of equality of opportunity as pledge during freedom struggle was, ‘equality not only of opportunity to be given to all but special opportunities for educational, economic and cultural growth must be given to backward group so as to enable them to catch up to those who are ahead of them’. Employment or appointment to an office in the State constituted a, ‘new form of wealth’ on the date the Constitution wag enforced, therefore equal opportunity to all its citizens was constitutionally provided for without any discrimination on religion, race or caste etc. But it would have been mere illusion if no provision was made to ensure similar opportunity to those citizens who remained backward either because of historically social reasons or economic poverty or poor quality of education or any other reason which could be determinative of backwardness. How the doctrine of equality, claimed to be ‘the core of American democratic aspiration’ was twisted, ‘to relegate, racial minorities to inferior status by denying them, ‘equal access to the opportunity enjoyed by others’ under, cover of, ‘separate but equal’ doctrine commented by Justice Harlton in his dissenting opinion in Plessy v. Ferguson, 163 US 537 (1896) as ‘pernicious’ was well known. The American myth that it was a ‘nation of equals and a classless society*28 had been exploded. Technically and even legally probably the interpretation could be within provision of constitutional guarantee of equality but it was abnoxious and destructive of social equality. ‘The effect of the majority decision in Plessy (supra) was to subordinate them until then dominant anti-discrimination principle of the Fourteenth Amendment to the Court created doctrine of reasonable clasification.’ Although the doctrine of Plessy was gradually abandoned finally but not before 1954 till Brown’s case was decided, Therefore Article 16 while providing for equality of opportunity to all without any distinction and irrespective of forward or backward class of citizens took care to avoid recurrence of American experience by directing State to reserve posts for backward class if they were not adequately represented in services as, ‘inequality does not harm only the unequals, it hurts the entire society’.
564. Thus Article 16(1) and (4) operate in same field. Both are directed towards achieving equality of opportunity in services under the State. One is broader in sweep and expensive in reach. Other is limited in approach and narrow in applicability. Former applies to ‘all’ citizens whereas latter is Available to ‘any’ class of backward citizens. Use of words ‘all’ in 16(1) and ‘any’ in 16(4) read together indicate that they are part of same scheme. The one is substantive equality and other is protective equality. Article 16(1) is a fundamental right of a citizen whereas 16(4) is an obligation of the State. The former is enforceable in a Court of law, whereas the latter is ‘not constitutional compulsion’ but an enabling provision. Whether Article 16(4) is ‘in substance, an exception or ‘a proviso or, ’emphatic way of putting the extent to which equality of opportunity could be carried or ‘Presumed to exhaust all exception in favour of backward class or ‘expressly designed as benign discrimination devoted to lifting of backward classes’, but if Article 16(1) is the, ‘positive aspect of equality of opportunity’ Article 16(4) is a complete code for reservation for backward class of citizens as it not only provides for exercise of power but also lays down the circumstances, in which the power can be exercised, and the purpose, and extent of its exercise. One is mandatory and operates automatically whereas the other comes into play on identification of backward class of citizens and their inadequate representation.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448