Justice R.M. Sahai [1]
609. Article 16(1), (2) and (4) is extracted below :
“16. Equality of opportunity in matters of public employment.
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(4) Nothing in this article shall prevent the State from making 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.
610. Originally this Article as introduced in the Constituent Assembly was Article 10 and its sub-article (3) identical to sub-article (4) of Article 16 provided for reservation, ‘in favour of any class of citizens’. It was the Drafting Committee which qualified the expression, ‘class of citizens by adding the word ‘backward’ before it. Effect of this addition was that clause got narrowed and the reservation could be made only for those class of citizens who could be grouped as backward. Putting it the other way the framers of the Constitution decided against expansive reservation which under original proposal could have extended to any class of citizens. What was thus consciously and deliberately given up by exercising the option in favour of only those class of citizens who could be identified as backward then reservation in favour of any other class of citizens cannot legitimately and legally be accepted as valid. Extending it to other class of citizens under cover of reasonable classification would be constitutional distortion. What should be deemed to be prohibited in the light of historical background cannot be brought back from the backdoor on principle developed by the American courts under Equal Protection Clause as they had to rise to the occasion due to absence of a provision like Article 16(4), and the fractured interpretation put in the Slaughter house cases[2], which eroded the very foundation of Equal Protection clause ‘mainly intended for the benefit of Negro, freedom.
611. Reservation correlated with population was not accepted even by the Constituent Assembly. On plain construction inadequacy of representation cannot be the measure of reservation. That is creative of jurisdiction only. In fact Dr. Ambedkar’s illustration while persuading all sections to accept the, drafting committee proposal is very instructive.,
“Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity ? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation.”
Even otherwise if the framers would have intended to provide for reservation to extent of backwardness of the population it would have been simpler to use the expression, ‘in proportion to it’ after the words ‘backward class of citizens’ and before is ‘not’ adequately represented. Article 16(4) then would have read its under :-
“Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens in proportion to it is not adequately represented in the services under the State”.
No rule of interpretation in absence of express or implied indication permits such substituted reading.
612. In State of Kerala v. N.M. Thomas, 1976(1) SCR 906, Mathew, J., introduced concept of proportional equality from two American decisions Griffin v. Illionois, (1955) 351 US 12 and Harper v. Virginia State Board of Elections, (1966) 383 US 663. None of the decisions were concerned with affirmative action. The one related to payment of charges for translation of manuscript in appeal and other with levy of poll tax at uniform rate indiscriminately. In view of clear phraseology and the background of enactment of Article 16(4) any interpretation of it on ratio of American decisions cannot be of any help. Our constitution does not approve of proportional representation either in services or even in parliament as is illustrated by Article 321 of the Constitution which empowers the President to nominate not more than two members of the Anglo Indian community to the House of People Irrespective of their population, if they are not adequately represented. Same is the theme of Dr. Ambedkar’s speech in Constituent Assembly, extracted earlier. For the same reasons the observation of Fazal Ali, J. in Thomas (AIR 1976 Supreme Court 490) (supra) :
“…….Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%. As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large. number of backward classes of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Article 16 ? The answer must necessarily be in the negative.
Cannot be accepted as correct construction of Article 16(4). True as observed by Krishna Iyer, J., in Soshit Karamchari (AIR 1981 Supreme Court 298) (supra) and Chinnappa Reddy, J. in Vasantha Kumar (AIR 1985 Supreme Court 1495) (supra) that there is no constitutional provision restricting reservation to 50% but with profound respect, the debates in the Constituent Assembly, the provisions in the Constitution do not support the construction of Article 16(4) as empowering government to reserve posts for backward class of citizens in proportion to their population. Any construction of Article 16(4) cannot be divorced without taking into account Article 16(1). Equality in services has been balanced by providing equal. opportunity to every citizen ‘at the. same time empowering the State to take protective measure for the backward class of citizens who, are not adequately represented. This balancing of equality cannot be lost sight of while interpreting these provisions. Since there is no clear indication either way the role of the Courts become both important and responsible, by interpreting the provision reasonably and with common sense so as to carry out the objective of its enactment. And the purpose was to enable the backward class of citizens to share the power if they were not adequately represented but not to grant proportional representation, a typical British concept rejected by our Founding Fathers.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448
[2] Slaughterhouse Cases (1873) 16 Wall. (83 US) 36 21 L Ed 394