Justice R.M. Sahai [1]
565. Compensatory or remedial measures for lesser fortunate are thus not, ipso facto, violative of equal opportunity as our society was founded not on abstract theory that all men are equal but on realism of societal differences created by human methodology resulting in existence of the weak and the strong, poor and the rich. Preamble, the basic feature of the Constitution, therefore, promises equal opportunity and status and dignity to every citizen the actuality of which has been ensured by empowering the State to take positive steps under Articles 15(4) and 16(4). Forty years of recount demonstrate flowering of principle of equal opportunity and encourage to inferisify it for the deserving, past or present. Reverse discrimination, an expression coined by American courts and jurists commented upon, as sharpened edge of a sword as, ‘it is as much as an evil as the discrimination it aims to overcome as it violates, (a) formal justice (b) consistency (c) equality of opportunity (d) due process of equality, are expressions of one sided thinking without grip-of the constitutional goal set out by founding fathers that, ‘equality of opportunity must be transformed into equality of results’.
An enlightened society is one which takes care of the poor, the backward, the retarded, the handicapped as much as of the rich, the forward, the healthy and the gifted. Formal equality transforms into real equality when the disadvantage arising out of social circumstances is levelled and the least and the best advantaged are so paired by the State activism that differences and distinctions arising out of ascribed identity get gradually lost. Various articles of the Constitution reflect this philosophy. Article 16 is a classic example, and probably unparallel in the constitutional history of the world, where individualism advocated by West in eighteenth and nineteenth century co-exist with States predominant role in bridging the gulf between the needy and the affluent, the backward and the forward. It reflects modern and progressive thinking on Equality. As observed by Laski, ‘By adequate opportunity we cannot imply equal opportunities in a sense that implies identity of original chance. The native endowments of men are by no means equall’.
According to Ronald Dworkin, ‘All human beings have a natural right to an equality of concern and respect, a right they possess not by virtue of birth, but simply as human beings with the capacity to make plans and give justice’. Articles 39 and 46 are extension of this belief and thought. Any legislative measure or executive order reserving appointments or posts cannot be assailed as being beyond constitutional, sanction. As far back as 1951 it was held by a Seven Judges’ Constitution Bench, of this court ‘Reservation of posts in favour of any backward class of citizens cannot therefore be regarded as unconstitutional’. Nor did the Constitution makers ‘ restricted the period of its continuance as was done for Anglo-Indians by Article 336 as an enlightened and progressive State’ a responsible government of a welfare country must decide itself periodically on prevalent social and economic conditions and not on political consideration or extraneous compulsion if the protective umbrella has to be kept opened, for whom and for how long.
566. Before proceeding further it may be mentioned that many decisions were cited of American Courts dealing with affirmative action for Negroes and a parallel was attempted to be drawn from it for justifying reservation for other backward classes. But this ignores that unlike the United States our Constitution itself provides for reservation for backward classes, therefore, it is unnecessary to derive inspiration from decisions given by American court on equal protection. clause. They may be relevant for classification and nexus test under Article 14 or even for judging if the provision by being arbitrary was violative of equality doctrine but they cannot furnish relevant guideline for interpreting Article 16(4). How equality was distorted and how Blacks were made to suffer by biased and narrow construction of the concept of equality for nearly hundred years is a matter of history. To derive parallel from classification developed by American courts to support reservation on any ground for other backward classes would be constitutionally unjust and legally unsure. Whether American Constitution was or is colour blind or not but when our Constitution was framed caste was in, ‘bad odour’. Deliberate ‘Divide and Rule’ policy of Britishers by perpetuating caste was in full glare, therefore, the founding fathers while guaranting equality prohibited discrimination on the ground of religion, race or caste etc. Unfortunate American experience of, ‘separate but equal’ doctrine legitimatised in Plessy v. Ferguson, (1896(163) 45 537) resulting in segregating negroes and keeping them at distance from American prosperity was avoided by making the State responsible both for ameliorative measures or affirmative action and protective steps. The doctrine of, ‘compelling State interest’ developed by American Courts to support classification for even race conscious measures particularly in economic field or business regulation have no relevance as the state has been constitutionally empowered to remedy the social imbalance. From ‘separate but equal’ in Plessy to, ‘freedom of choice’ developed by Brown I*39 and Brown II*40 to, ‘just schools’ without label of white or Negro in Green to elimination of segregation of ‘root and branch’ in- Swann may be a fascinating development for America but our constitutional provisions being more prageamatic and relistic to problem of equality in public employment it appears unnecessary and risky to derive any inspiration from American decision for interpreting, Article 16(4) as,
‘In its Compensatory Programmes for depressed classes, India, has gone much further than the egualitarian western societies such as the United States’. The conclusion, thus, is that
(1) Article 16(1) and 16(4) operate in the same field.
(2) Article 16(4) is exhaustive of reservation.
(3) No period for reservation has been provided but every State must keep on evaluating periodically if it was necessary to continue reservation, and for whom.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448