Justice P.B. Sawant[1]
412. The aim of any civilised society should be to secure dignity to every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities is any walk of social life is a denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the individual is dented and direct proportion to his deprivation of the equal access to social means. The democratic foundations are missing when equal opportunity to grow, govern, and give one’s best to the society is denied to a sizeable section of the society. The deprivation of the opportunities may be direct or indirect as when the wherewithals to avail of them are denied. Nevertheless, the consequences are as potent.
413. Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the preamble of the Constitution, of fraternity assuring the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all.
414. Likewise, the social and political justice pledged by the Preamble of the Constitution to be secured to all citizens, will remain a myth unless first economic justice is guaranteed to all. The liberty of thought and expression also, will remain on paper in the face of economic deprivations. A remunerative occupation is a means not only of economic upliftment but also of instilling in the individual self-assurance, self-esteem and self-worthiness. It also accords him a status and dignity as an independent and useful member of the society. It enables him to participate in the affairs of the society without dependence on, or domination by, others, and on an equal plane depending upon the nature, security and remuneration of the occupation. Employment is an important and by far the dominant remunerative occupation, and when it is with the Government, semi-Government or Government-controlled organisation, it has an added edge. It is coupled with power and prestige of varying degrees and nature, depending upon the, establishment and the post. The employment under the State, by itself, may, many times help achieve the triple goal of social, economic and political justice.
415. The employment – whether private or public – thus, is a means of social levelling and when it is public, is also a means of directly participating in the running of the affairs of the society. A deliberate attempt to secure it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to them as ordained by the Preamble of the Constitution.
416. It is no longer necessary to emphasise that equality contemplated by Article 14 and other cognate Articles including Articles 15(1), 16(1), 29(2) and 38(2) of the Constitution, is secured not only when equals are treated equally but also when unequals are treated unequally. Conversely, when unequals are treated equally, the mandate of equality before law is breached. To bring about equality between the unequals. Therefore, it is necessary to adopt positive measures to abolish inequality. The equalising measures will have to use the same tools by which inequality was introduced and perpetuated. Otherwise, equalisation will not be of the unequals. Article 14 which guarantees equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalising measures.
The founders of the Constitution, however, thought it advisable to incorporate another provision, viz., Article 16 specifically providing for equality of opportunity in matters of public employment. Further they emphasised in clause (4) thereof that for equalising the employment opportunities in the services under the State, the State may adopt positive measures for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is mot adequately represented in such services. By hind sight, the foresight shown in making the provision specifically, instead. of leaving it only to the equality provision as under the U.S. Constitution, is more than vindicated. In spite of decisions of this Court on almost all aspects of the problem, spread over the past more than forty years now, the validity, the nature, the content and the extent of the reservation is still under debate. The absence of such provisions may well have led to total denial of equal opportunity in the most vital sphere of the State activity.
Consequently, Article 38(2) which requires the State in particular to strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations, and Article 46 which enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people, and to protect them from social injustice and all forms of exploitation, and Article 335 which requires the Stale to take into consideration, the claims of the Scheduled Castes and Scheduled Tribes in making the appointments to services and posts under the Union or States, would have, all probably remained on paper.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448