Justice R.M. Sahai [1]
623. Reservation, for, ‘economically backward, sections of the people who are not covered by any of the existing schemes of reservations’, again, raises an important issue. De facto difficulties in determining such backwardness stands established by failure of the government to evolve any workable criteria even after lapse of one year since, 25th September, 1991, the date on which the order dated 23rd August 1990 directing reservation for backward class was amended and it was announced that, ‘the criteria for determining the poorer sections of the SEECs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately. But the de jure hurdles appear, even, greater. Any reservation resulting in curtailing right of equal opportunity is to withstand the test of equal protection or benign discrimination. Latter has been permitted for a class which had suffered injustices in the past and is suffering even now. It is an atonement of past segregation and discrimination such as Negroes in America and SC/ST of our country. And is being extended even to those who could legitimately be considered to be backward class. Since Article 16(4) has a constitutional purpose and is to operate only so long the goal is not achieved economic backwardness does not qualify for such protective measure. As even if such a class or collectivity is held to fall in the broader concept of the expression backward class of citizens it would not be eligible for the benefit as it would be incapable of satisfying the other mandatory requirement of being Inadequately represented in services without Which the State cannot have any jurisdiction to exercise the power. Article 16(4) thus by its nature and purpose cannot be applicable to economically backwards, except probably when a proper methodology is worked out to determine inadequacy of representation of such class.
624. Is it possible to reserve under Article 16(1) ? Detailed reasons have been given, earlier, against any reservation under cover of doctrine of reasonable classification. Eradication of poverty which, ‘is not to be exalted or praised, but is an evil thing which must be fought and stamped out” Jawaharlal Nehru, quoted from Dorothy, Norman (ed.) Nehru is one of the ideals set out in the Preamble of the Constitution as it postulates to achieve economic justice and exhorts the State under Article 38(2) to, ‘minimise the inequality of income’. All the same can the State for this purpose reserve posts for economically backward in service. Right to equal protection of laws or equality before law in, ‘benefits, and burdens’ by operation of law, equally, amongst equals and unequally amongst unequals is firmly rooted in concept of equality developed by courts in this country and in America. But any reservation or affirmative action on economic criteria or wealth discrimination cannot be upheld under doctrine of reasonable classification. Reservation for backward class seeks to achieve the social purpose of sharing in services which had been monopolised by few of the forward classes. To bridge the gap, thus, created the affirmative actions have been upheld as the social and educational difference between the two classes furnished reasonable basis for classification. Same cannot be said for rich and poor. Indigence cannot be rational basis for classification for public employment.
625. Any legislative measure or executive action operating unequally between rich and poor has been held to be suspect. A provision requiring a person to pay for trial manuscript before filing criminal appeal was struck down in Griffin’ Griffin v. Illindis, (1955) 351 US 12 as it amounted to denial of right of appeal to poor persons. In Harper v. Virginia State Board of Elections, (1966) 383 US 663 poll tax for voting was invalidated as, ‘wealth, like race, creed or colour, is not germane to one’s ability to participate intelligently in the electoral process’. Protection was given to the appellants on effect or consequence of equal protection clause. Duty of State to protect against deprivation due to poverty should not be confused with States obligation to treat every one uniformly and equally without. discrimination. Protection against application of law due to difference in economic condition, cannot be equated with classification based on disproportion in wealth. Former is in realm of justice and fairplay whereas latter is equal protection to which every one is entitled. In the former unjust application of law may be cured by removing the offending part thus apply the law uniformly to rich and poor. Whereas in latter the classification has to be Justified on the nexus test. Poverty may have relevance and may furnish valid justification while dealing with social and economic measure. Any legislation or executive measure undertaken to remove disparity in wealth cannot be suspect but a classification based on economic conditions for purposes of Article 16(1) would be violative of equality doctrine.
626. More backward and backward is an Illusion. No constitutional exercise is called for it. What is required is practical approach to the problem. The collectivity or the group may be backward class but the individuals from that class may have achieved the social status or economic affluence. Disentitle them from claiming reservation. Therefore, while reservaing posts for backward classes, the departments should make a condition precedent that every candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart provision should be made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolisation by the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated. And once a group or collectivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward class.
(1) No reservation can be made on economic criteria.
(2) It may be under Article 16(4) if such class satisfies the test of inadequate representation.
(3) Exclusion of creamy layer is a social purpose. Any legislative or executive action to remove such persons individually or collectively cannot be constitutionally invalid.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448