Justice R.M. Sahai [1]
613. Equality has various shades. Its understanding and application have been shaped by social, economic and political conditions prevailing in the society. The reigning philosophy since l8th century has been the State’s responsibility to reduce disparities amongst various sections of the population and promoting a just and social order in which benefits and advantages are evenly distributed. To achieve this basic objective various theories have been advanced from time to time. The formal equality advanced by Aristotle that equals should be treated equally and unequals unequally was as much result of social and economic conditions as the Rawls theory of justice or the Dworkin’s concepts of right of all to treatment was equals. Liberty and right to equality taken individually may appear to pull in different directions. But viewed as part of justice and fairness the two are the primary tenets of modern egalitarian society. The real difficulty is translating them into practical working. The American concept of ‘equal but separate’ doctrine is the best illustration of distance between theory and practice of equal protection. The recognition and realisation that neither all men are equal nor are the circumstances in which they are born or grow are same gave rise to classification and grouping of persons similarly situated and extending them equal or same treatment, But the classification has to be reasonable and rational bearing a just relation with the legislative purpose and should not be invidous or arbitrary. In our constitutional scheme the classification in matters of employment or appointment in the services has been done constitutionally. From the entire class of all citizens any backward class has been classified for beneficial or benign treatment. The legislature or executive therefore cannot transgress it. Since the Constitution treats all citizens alike for purposes of employment, except those who fall under Article 16(4) any further classification or grouping for reservation would be constitutionally invalid. No legislative exercise can transcedent the constitutional barrier. For valid classification legislature or executive measures must be correlated with legislative purpose or objective. Once the Constitution itself unfolded the purpose of achieving the goal of equality by permitting reservation for backward classes, only, any further reservation being beyond constitutional purpose would be impermissible and per se invalid.
614. Abstract equality is neither the theme nor philosophy of our Constitution. Real equality through practical means is the avowed objective. Atoning for the past in justices on backward classes through Constitutional mechanism was morality raised to legal plain. Admonition to State not to deny equality before law or equal protection of laws found on sound public policy, is in reality the measure of fundamental right which every person enjoys. But, principle of the equal protection of law does not mean that, ‘every law must have universal application to all persons who are not by nature, attainment or circumstance, in the same position Dhirendra Kumar Mandal v. The Supdt. & Remembrancer of Legal Affairs to the Govt. of West Bengal and another, (1955 (1) SCR 224) and the varying needs of different classes of persons require special treatment. Principle of reasonable classification was developed by theorists and courts to enable State to function effectively by classifying reasonably. But the theory developed by Tussman and Breck “The Equal Protection of the Laws”, 37 California Rev 341. that Equal Protection clause really dealt with the problem with the relation of two classes to each other one of individuals possessing the definite traint and the other of individuals tainted by the mischief at which the law aims said to be, ‘the first comprehensive analysis of the Equal Protection Clause’ may be applicable while considering the scope of Article 14, but once the constitution makers treated employment in services separately by creating fundamental right in favour of all citizens in pursuance of the ideal of Preamble to secure to all its citizens equality in opportunity and status then it has to be understood in its own perspective. Various sub-articles of Article 16 specially clause (4) indicates constitutional Classification and creation of two classes one dealt in Article 16(1) and other in Article 16(4). Principles of reasonable classification for purposes of creating another class or planting one class in another would be constitutionally infirm.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448