Justice R.M. Sahai [1]
576. ‘Caste is a reality’. Undoubtedly so are religion and race. Can they furnish basis for reservation of posts in services ? Is the State entitled to practice it in any form for any purpose ? Not under a constitution wedded to secularism. State responsibility is to protect religion of different communities and not to practice it. Uplifting the backward class of citizens, promoting them socially and educationally taking care of weaker sections of society by special programmes, and policies is the primary concern of the State. It was visualised so by framers of the Constitution, But any claim of achieving these objectives through race, conscious measures or religiously packed programmes would be uncharitable to the noble and pious spirit of the founding fathers, legally impermissibe and constitutionally ultra vires. Deriving inspiration from the American philosophy that, ‘just as the race of students must be considered in determining whether a constitutional violation has accrued so also must race be considered in formulating remedy’ without any regard to the Preamble of our Constitution and provisions like Articles 15(1), 16(2) and 29(2) would be plunging our Nation into disaster not by what was adopted and promised as principle for governance for our people on our soil but from what has been laid down in a country which is yet far away from, ‘equality of result’ or ‘substantive equality’ so far Black or Brown are concerned.
577. Brown v. Board of Education (supra) which is considered as ‘turning the clock back’ on racial discrimination was given much after Venkataramana, AIR 1951 Supreme Court 229. Provisions like Article VI were introduced in America in 1964 only. When Bakke (1978 (57) Law Ed 2d 750) (supra) was delivered Justice Marshal lamented, ‘this Court in the Civil Rights cases and Plessy v. Ferguson, (1890 (163) US 537) destroyed the movement towards complete equality. For almost a century no action was taken, and thus non-action as with the approval of the Court. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programmes. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California’. The lament was because of failure to bring the Negroes in the mainstream, ‘in light of the sorry history of discrimination and its devastating impact on the lives of Negroes is to ensure that America will forever remain a divided society’. But to avoid any risk of keeping ours as a divided society, the Constitution makers provided ample safeguards for Scheduled Castes and Scheduled Tribes’ (SC/ST) the only category of backward class which could be compared to the Negroes in America. American philosophy developed by courts that discrimination having arisen due to race consciousness the remedy too should be race based, appears to have been inspired by our constitutional provisions which takes every precaution to remedy the caste related evil of SC/ST by caste based reservation. But the same cannot be adopted for other backward classes as it would be distortion of constitutional interpretation by importing a concept which was deliberately and purposely avoided. Insistence, for claiming reservation for the remaining or for all others who were in so-called broader category of Sudras not because they were really backward without any regard to social and economic conditions, would be unfair to history and unjust to society. What is constitutionally provided has to be adhered to in spirit but not on assumption that all amongst Hindus who fell in the broader category of Sudras were subjected to same treatment as untouchable in India or Negroes in America. History, social or political, does not bear it out. Reservation for other backward class is no doubt constitutionally permissible, on social and economic conditions which prevailed in the country and are still prevailing and not on. benign steps for Negroes upheld by foreign courts. Judicial activism has no doubt in America been remarkable in absence of any constitutional protection for the Negroes but our courts are not required to undertake the exercise as our constitutional statesmanship has no parallel in the world where to achieve egalitarian society truly and really it devised mechanism of treating the backward class of citizens, ‘differently’ by Article 16(4) and 15(4) to bring them at par with others so that they could be treated equally. The policy of official discrimination is,”unique in the world both in the range of benefits involved and in the magnitude of the groups eligible for them.”
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448