THOMMEN, J.1
287. Article 16 deals with equality of opportunity in matters of public employment. The kind of backwardness which is required to attract the special provisions protecting the backward classes of citizens under Article 16 in respect of public employment is identical to the social and educational backwardness mentioned in Article 15(4). M.R. Balaji v. State of Mysore, (1963) Supp 1 SCR 439, 474; Janki Prasad Parimoo v. State of Jammu and Kashmir, (1973) 3 SCR 236.
These two Articles are facets of equality specially guaranteed to citizens, while Article 14 prohibits the State from denying to any person equality before the law or the equal protection of the laws. State of Kerala v. N.M. Thomas, (1976) 1 SCR 906, 956.
Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preferences in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. Clause (2) prohibits discrimination against any citizen in respect of any public employment ‘on grounds only of religion, race, caste, sex, descent, place of birth residence or any of them’. Article 16 thus guarantees equality of opportunity and prohibits discrimination of any kind solely on any one or more of the grounds mentioned in clause (2). Nevertheless, clause (4) of this Article provides that it is open to the State to make ‘any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’. It is an enabling provision conferring a discretionary power on the State, and ameliorative harmonisation of conflipting norms to stretch to the utmost extent the frontiers of equality; and emphatic assertion of equality between equals and inequality between unequals so as to achieve the maximum degree of qualitative and relative equality by means of affirmative action even to the point of reservation. It is in the nature of an exception or a proviso to the general rule of equality.[1]
288. The twin conditions to warrant reservation under Article 16(4) are : backwardness of the chosen classes of citizens and their inadequate representation in the public services. The backwardness of the classes of citizens mentioned in Article 16(4) is as stated earlier, of the same degree and kind of social and educational backwardness postulated in Article 15(4). Article 16(4) is meant for the protection of the Scheduled Castes and the Scheduled Tribes and, other comparably backward classes of citizens who are the unfortunate victims of continuing ill effects of identified prior discrimination.
289. Whether the conditions postulated for reservation are satisfied or not is a matter on which the State has to form an opinion. But the opinion of the State must be founded on reason. The satisfaction on the basis of which an opinion has been formed by the State must be rationally supported by an objective consideration. The State must take into account all relevant matters and eschew from its mind all irrelevant matters, and make a proper assessment of the competing claims of classes of citizens and evaluate their respective backwardness before it comes to the conclusion that particular classes of citizens are so backward and so inadequately represented in the public services as to be worthy of special protection by means of reservation. This must be an objective evaluation of the competing claims for reservation. Any such conclusion must be subject to periodic administrative review by a permanent body of experts with a view to adjustment and readjustment of the State action in accordance with the changing circumstances of the beneficiaries of such action. The conclusion thus periodically arrived at by such administrative reviewing body must necessarily pass the test of judicial review whenever challenged.[2]
No matter whether such orders are regarded as legislative or executive or whichever nomenclature one may ascribe to it, the test for juidicial review laid down in Shri Sitaram Sugar Company Ltd. v. Union of India, (1990) 1 SCR 909 must necessarily govern consideration of such questions. After an exhaustive review of authorities on the point, a Constitution Bench of this court stated :
“The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.”[3]
290. Identification of backwardness is an ever continuing process of inclusion and exclusion. Classes of citizens entitled to the constitutional protection of reservation must be constantly and periodically identified for their inclusion and for the exclusion of those who do not qualify. To allow the undeserved to benefit by reservation is to deny protection to those who are meant to be protected. As stated by this Court in A. Peeriakaruppan v. State of Tamil Nadu, (1971) 2 SCR 430 at 444 :
“…….But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest…. It must be remembered that the Government’s decision in this regard is open to judicial review”.
291. Any affirmative action must be supported by valid classification and must have a rational nexus with the object of redressing backwardness. It is much more so where such programmes totally exclude from consideration persons outside the chosen classes without regard to merits because of the set aside quotas. It does not matter whether clause (4) of Article 16, like clause (4) of Article 15, is seen as a proviso or an exception or, in the words of Mathew, J., a legislative device to emphasise the ‘extent to which equality of opportunity could be carried, viz., even up to the point of making reservation’. State of Kerala v. N.M. Thomas, (1976) 1 SCR 906, 956, N.M. Thomas apart, this Court has generally treated clause (4) as an exception or a proviso to the general rule of equality enshrined in Article 16(1).
Call it what one will – an exception or proviso or what — and semantics apart, reservation by reason of its exclusion of the generality of candidates competing solely on merits must he narrowly tailored and strictly construed so as to be consistent with the fundamental constitutional objectives. Clause (4), seen in whatever colour, is a very powerful and potent weapon which causes lasting ill effects and damage unless justly and appropriately used. It is not a remedy for all kinds of ‘disadvantages and disabilities and for all classes of people. It is a special and powerful weapon to wield which with less than the very special. care and caution and otherwise than in the most exceptional situations, peculiar to extreme cases of backwardness, that the Constitution envisages is to give rise to invidious reverse discrimination exceeding the strict bounds of Article 16(4) and to create hateful caste-prejudices and divisions between classes of people.
292. Articles 15(4) and 16(4) refer to the same classes of backward citizens. But they do not refer to identical remedies. While Article 15(4) speaks of special provisions for the advancement of backward classes, Article 16(4) expressly permits the State to make reservation of appointments or posts in public services in favour of such classes. It is true that both are enabling provisions allowing the State to adopt such affirmative action programmes as are necessary including reservation of seats or posts. But, unlike Article 16(4), Article 15(4) is not so worded as to suggest that it is exclusionary in character. The ‘special provision’ contemplated in Article 15(4) is an emphatic reference to the affirmative action which the State may adopt to improve the conditions of the disadvantaged members of the backward classes of citizens. Significantly, Article 15(4) does not specifically speak of reservation, but it has been generally understood to include that power.[4] While the State may adopt all such affirmative action programmes as it deems necessary for all disadvantaged persons, any special provision amounting to reservation and consequent exclusion from consideration of all the others in respect of the reserved quota in matters falling outside Article 16(4) must be subjected to even greater scrutiny than in the case of those falling under it.
293. The concept of equality is not inconsistent with reservation in public services because the Constitution specially says so, but, in view of its exclusion of others irrespective of merits, it can be resorted to only where warranted by compelling State interests postulated in Article 16, The State must be satisfied that in order to achieve equality in given cases, reservation is unavoidable by reason of the nature and degree of backwardness. Reservation must be narrowly tailored to that end, and subjected to strict scrutiny.
294. Affirmative action to redress the conditions of backward classes of citizens may be adopted either by a programme of preferential treatment extending certain special advantages to them or by reservation of quotas in their favour to the total exclusion of everybody outside the favoured groups. The validity of both these measures depends on classification founded on intelligible differentia having rational and substantial nexus with the object to be achieved, i.e., the redressal of backwardness. And such differentiation or classification for special preference must not be unduly unfair to the persons left out of the favoured groups.
295. While preferential treatment without reservation merely aids the backward classes of citizens to compete more effectively, with the more meritorious and forward classes of citizens, the more drastic measure of reservation totally excludes all classes of people falling outside the backward classes of citizens from competing in the reserved quota of seats or posts. No matter what qualifications they possess and how superior are their merits, these persons not belonging to the preferred groups are prevented from competing with those of the preferred groups in respect of the reserved seats or posts, while candidates belonging to the preferred groups are entitled to compete for any seat or post, whether in the general category or in the reserved quota.
296. Preference without reservation may be adopted in favour of the chosen classes of citizens by prescribing for them a longer period for passing a test or by awarding additional marks or granting other advantages like relaxation of age or other minimum requirements[5].
Furthermore, it would be within the discretion of the State to provide financial assistance to such persons by way of grant, scholarships, fee concessions etc. Such preferences or advantages are like temporary crutches for additional support to enable the members of the backward and other disadvantaged classes to march forward and compete with the rest of the people. These preferences are extended to them because of their inability otherwise to compete effectively in open selections on the basis of merits for appointment to posts in public services and the like or for selection to academic courses. Such preferences can be extended to all disadvantaged classes of citizens, whether or not they are victims of prior discrimination. What qualifies persons for preference is backwardness or disadvantage of any kind which the State has a responsibility to ameliorate. The blind and the deaf, the dumb and the maimed, and other handicapped persons qualify for preference. So do all other classes of citizens who are at a comparative disadvantage for whatever reason, and whether or not they are victims of prior discrimination. All these persons may be beneficiaries of preferences shot of reservation. Any such preference, although discriminatory on its face, may be justified as a benign classification for affirmative action warranted by a compelling state interest.
297. In addition to such preferences, quotas may be provided exclusively reserving posts in public services or seats in academic institutions for backward people entitled to such protection. Reservation is intended to redress backwardness of a higher degree. Reservation prima facie is the very antithesis of a free and open selection. It is discriminatory exclusion of the disfavoured classes of meritorious candidates : M. R. Balaji (supra). It is not a case of merely providing an advantage or a concession or preference in favour of the backward classes and other disadvantaged groups. It is not even a handicap to disadvantage the forward classes so as to attain a measure of qualitative or relative equality between the two groups. Reservation which excludes from consideration all those persons falling outside the specially favoured groups, irrespective of merits and qualifications, is much more positive and drastic a discrimination albeit to achieve the same end of qualitative equality – but unless strictly and norrowly tailored to a compelling constitutional mandate, it is unlikely to qualify as a benign discrimination. Unlike in the case of other affirmative action programmes, backwardness by itself is not sufficient to warrant reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. Reservation is a remedial action specially addressed to the ill effects stemming from historical discrimination. To ignore this vital distinction between affirmative action short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the constitutional grant of power specially addressed to the constitutionally recognised backwardness.
[1] The General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586, 599; M.R. Balaji, (1963 Supp (1) SCR 439) at p. 473 (supra); State of Andhra Pradesh v. P. Sagar, (1968) 3 SCR 595; State of Kerala v. N.M. Thomas, (1976) 1 SCR 906; Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 2 SCR 185 ; Triloki Nath v. State of Jammu & Kashmir, (1969) 1 SCR 103, 104; C.A. Rajendran v. Union of India, (1968)1 SCR 721, 730, 733 ; State of Punjab v. Hiralal, (1971) 3 SCR 267, 272; T. Devadasan v. Union of India, (1964) 4 SCR 680. Dr. Ambedkar called it an exception; see Constituent Assembly Debates, Vol. 7 (1948-49) p.702
[2] A Peeriakaruppan v. State of Tamil Nadu, (1971) 2 SCR 430
[3] p. 946. See also the principle discussed in Supreme Court Employees’ Welfare Association v. Union of India, (1989) 4 SCC 187
[4] M.R. Balaji v. State of Mysore, (1963) Supp (1) SCR 439
[5] See the preferential treatment in State of Kerala v. N.M. Thomas (1976) 1 SCR 906
This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448