Justice P.B. Sawant[1]
Question II :
What would be the content of the phrase “Backward Class” in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion by itself could identify a class for Article 16(4) and whether “Backward Classes” in Article 16(4) would include the “weaker sections” mentioned in Article 46 as well ?
434. The courts have, as will be instantly pointed out, equated the expression “backward classes of citizens” with the expression “Socially and Educationally Backward Classes of Citizens (“SEBCs” for short) found in Article 15(4) and Article 340. Even the impugned orders have used the expression “socially and educationally backward classes of citizens”. As a matter of fact, since the impugned orders have chosen to give the benefit of reservation expressly to SEBCs and since it is not suggested that SEBCs are not “backward class of citizens” within the meaning of Article 16(4), the discussion on the point as purely academic in the present case.
435. In this connection, a reference may. first be made to Article 335 of the Constitution. There is no doubt that backward classes under Article 16(4) would also include SCs/STs for whose entry into services, provision is also made under Article 335. There is, however, a difference in the language of the two Articles Whereas the provision of Article 16(4) is couched in an enabling language, that of Article 335 is in a mandatory cast. It appears that it became necessary to make the additional provision of reservations for SCs/STs under Article 335 because for them the reservations in services were to be made as obligatory as reservations in the House of the People and the Legislative Assemblies under Articles 330 and 332 respectively. When we remember that Articles 330, 332 and 335 belong to the family of Articles in Part XVI which makes “Special Provisions Relating to Certain Classes”, the additional and obligatory provision for SCs/STs under Article 335 becomes meaningful. It is probably because of the mandate of Article 335 and the level of backwardness of the SCs/STs – the most backward among the backward classes : that it also became necessary to caution and emphasise in the same vein, that the imperative claims of the SCs/STs shall be taken into consideration consistently with the efficiency of the administration, and not by sacrificing it. It cannot, however, be doubted that the same considerations will have to prevail while making provisions for reservation in favour of all backward classes under Article 16(4). To hold otherwise would not only be irrational but discriminatory between two classes of backward citizens.
436. We may now analyse Article 16 in the light of the question. In the first instance, it is necessary to note that neither clauses (1) and (2) of Article 16 read together, nor clause (2) of Article 29 prohibits discrimination and, therefore, classification, which is not made only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. They do not prevent classification, if religion, race, caste etc. are coupled with other grounds or considerations germane for the purpose for which it is made. Secondly, clauses (1) and (2) of Article 16 prevent discrimination against individuals and not against classes of citizens. Thirdly, clause (4) of Article 16 enables the State to make special provision in favour of any backward “class” of citizens and not in favour of citizens who can be classified as backward. The emphasis is on “class of citizens” and not on “citizens”. Fourthly, as has already been pointed out earlier, the class of citizens under Article 16(4) has not only to be backward but also a class which is not adequately represented in the services under the State. Fifthly, when we remember that the Scheduled Castes and Scheduled Tribes are also the members of the backward classes of citizens within the meaning of Article 16(4), the nature of backwardness of the backward class of citizens is implicit in Article 16(4) itself. Further, Part XVI of the Constitution which makes special provision under Article 338 for National Commission for Scheduled Castes and Scheduled Tribes for investigating their conditions, makes a similar provision under Article 340 for appointment of Commission to investigate the conditions also of “socially and educationally backward classes of citizens”. The two provisions leave no doubt about the kind of backwardness that the Constitution takes care of in Article 16(4). What is more, clause (4) of Article 15 which was added after the decision in The State of Madras v. Srimathi Champakam Dorairajan etc. (1951) SCR 525 specifically mentions that nothing in Article 15 or in clause (2) of Article 29, shall prevent the State from making any special provision for the advancement of any “socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”. The significance of this amendment should not be lost sight of. It groups “socially and educationally backward classes” with “Scheduled Castes and Scheduled Tribes”. When it is remembered that Articles 341 and 342 enable the President to specify by notification, the Scheduled Castes and Scheduled Tribes, it can hardly be debated that such specifications from time to time may only be from the socially and educationally backward classes or from classes whose economic backwardness is on account of their social and educational backwardness.
437. We may now refer to the decisions of this Court on the point.
438. In M.R. Balaji v. State of Mysore, (1963) Supp 1 SCR 439, what fell for consideration was Article 15 (4), and on the language of the said Article, it was held by this Court that the backwardness contemplated by the said Article was both social and educational. It is not either social or educational but it is both social and educational. In Janki Prasad Paromoo etc. etc. v. State of Jammu and Kashmir (1973) 3 SCR 236 which was a case under Article 16(4), this Court read “backward class of citizens” in Article 16(4) as “socially and educationally backward class of citizens”, although Justice Palekar who delivered the judgment for the Court, proceeded to equate the two expressions on the assumption that “it was well-settled that the expression “backward class” in Article 16(4) means the same thing as the expression “any socially and educationally backward classes of citizens” in Article 15(4)”. It is true that no decision prior to this decision had in terms sought to equate the two expressions, and to that extent the said statement can be faulted as it is sought to be done before us.
439. In K.C. Vasanth Kumar v. State of Karnataka, (1985) Supp I SCR 352, this Court was called upon to express opinion on the issue of reservations which may serve as a guideline to the Commission which the Government of Karnataka proposed to appoint for examining the question of affording better employment and educational opportunities to the Scheduled Castes and Scheduled Tribes and other backward classes. Hence, the interpretation of the expression “backward class of citizens” under Article 16(4) and of the expression “socially and educationally backward classes” under Article 15(4) and their co-relation, fell for consideration directly. The five Judges of the Bench with the exception of Chief Justice Chandrachud expressed their opinion on these two expressions. Desai, J. held that “Courts have more or less veered round to the view that in order to be socially and educationally backward classes, the group must have the same indicia as Scheduled Castes and Scheduled Tribes”. The learned Judge then proceeded to deal with what, according to him, was a narrow question, viz., whether caste-lable should be sufficient to identify social and educational backwardness. However, it appears that the learned Judge proceeded on the footing that the expression “backward class of citizens” was synonymous with the expression “socially and educationally backward classes of citizens”. There is no discussion whether the two expressions are in fact similar and of the reasons for the same. Chinnappa Reddy, J. dealt with the two expressions a little extensively and came to the conclusion as follows :
“Now, it is not suggested that the socially and educationally backward classes of citizens and the Scheduled Castes and the Scheduled Tribes for whom special provision for advancement is contemplated by Article 15(4) are distinct and separate from the backward classes of citizens who are inadequately represented in the services under the State for whom reservation of posts and appointments is contemplated by Article 16(4). ‘The backward classes of citizens’ referred to in Article 16(4), despite the short description, are the same as ‘the socially and educationally backward classes of citizens and the Scheduled Castes and the Scheduled Tribes’, so fully described in Article 15(4) : Vide Trilokinath Tiku v. State of Jammu and Kashmir, (AIR 1967 Supreme Court 1283) and other cases.”
440. Sen, J. also appears to have proceeded on the footing that the two expressions, viz., “socially and educationally backward classes” under Article 15(4) and “backward class of citizens” under Article 16(4) are synonymous.
441. Venkataramaiah, J. (as he then was) held that “Article 15(4) and Article 16(4) are intended for the benefit of “those who belong to castes, communities which are traditionally disfavoured and which have suffered societal discrimination in the past”. The other factors such as physical disability, poverty, place of habitation etc. – according to the learned Judge – were never in the contemplation of the makers of the Constitution while enacting these clauses.” The learned Judge has held that “while relief may be given in such cases under Article 14, 15(1) and Article 16(1) by adopting a rational principle of classification, Article 14, Article 15(4) and Article 16(4) cannot be applied to them”. The learned Judge has further held that “it is now accepted that the expressions ‘socially and educationally backward classes of citizens’ and ‘the Scheduled Castes and the Scheduled Tribes’ in Article 15(4) of the Constitution together are equivalent to ‘backward class of citizens’ in Article 16(4)”.
442. There is, therefore, no doubt that the expression “backward class of citizens” is wider and includes in it “socially and educationally backward classes of citizens” and “Scheduled Castes and Scheduled Tribes”.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448