Justice P.B. Sawant[1]
427. As has been pointed out earlier, Article 16(4) does not use the expression “Socially and Economically Backward Classes”. Instead it uses the expression “Backward Class of Citizens”. It is Article 15(4) and Article 340 which use the expression “Socially and Educationally Backward Classes”. Since the judicial decisions have equated the expression “backward class of citizens” with the expression “Socially and Educationally Backward Classes of citizens”, it appears that the impugned orders have used the two expressions synonymously to mean the same class of citizens. The second order has gone even further. It has carved out yet another class of beneficiaries of reservation, namely, “Other Economically Backward Sections”. As would be pointed out a little later, this new class of citizens cannot be a beneficiary of reservations in services under clause (4) of Article 16 nor under Clause (1) thereof.
428. We may now proceed to deal with the specific questions raised before us.
Question I
Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation of posts in services under the State ?
429. With the majority decision of this Court in State of Kerala v. N.M. Thomas, (1976) 1 SCR 906 having confirmed the minority opinion of Subba Rao, J. in T. Devadasan v. Union of India, (1964) 4 SCR 680, the settled judicial view is that clause (4) of Article 16 is not an exception to clause (1) thereof, but is merley an emphatic way of stating that is implicit in clause (1).
430. Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of our Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and 16 (1) no doubt would by themselves permit such positive measures in favour of the disadvantaged to make real the equality guaranteed by them. However, as pointed out by Dr. Ambedkar while replying to the debate on the provision in the Constituent Assembly, it become necessary to incorporate clause (4) in Article 16 at the insistence of the members of the Assembly and to allay all apprehensions in that behalf. Thus, what was otherwise clear in clause (1) where the expression “equality of opportunity” is not used in a formal but in a positive sense, was made explicit in clause (4) so that there was no mistake in understanding either the real import of the “right to equality” enshrined in the Constitution or the intentions of the Constitution-framers in that behalf. As Dr. Ambedkar has stated in the same reply, the purpose of the clause (4) was to emphasise that “there shall be reservation in favour of certain communities which have not so far had ‘a proper look into, so to say, in the administration.”.
431. If, however, clause (4) is treated as an exception to clause (1), an important but unintended consequences may follow. There would be no other classification permissible under clause (1), and clause (4) would be deemed to exhaust all the exceptions that can be made to clause (1). It would then not to be open to make provision for reservation in services in favour of say, physically handicapped, army personnel and freedom fighters and their dependents, project affected persons, etc. The classification made in favour of persons belonging to these categories is not hit by clause (2). Apart from the fact that they cut across all classes, the reservations in their favour are made on considerations other than that of backwardness within the meaning of clause (4). Some of them may belong to the backward classes while some may belong to forward classes or classes which have an adequate representation in the services. They are, however, more disadvantaged in their own class whether backward or forward. Hence, even on this ground it will have to be held that Article 16(4) carves out from various classes for whom reservation can be made, specific class, viz., the backward class of citizens, for emphasis and to put things beyond doubt.
432. For these very reasons, it will also have to be held that so far as “backward classes” are concerned, the reservations for them can only be made under clause (4) since they have been taken out from the classes for which reservation can be made under Article 16(1). Hence, Article 16(4) is exhaustive of all the reservations that can be made for the backward classes as such, but is not exhaustive of reservations that can be made for classes other than backward classes under Article 16(1). So also, no, reservation can be made under Article 16(4) for classes other than “backward classes” implicit in that Article. They have to look for their reservations, to Article 16(1).
433. It may be added here that reservations can take various forms whether they are made for backward or other classes. They may consist of preferences, concessions, exemptions, extra facilities etc. or of an exclusive quota in appointments as in the present case. When measures other than an exclusive quota for appointments are adopted, they form part of the reservation measures or are ancillary to or necessary for availing of the reservations. Whatever the form of reservation, the backward classes have to look for them to Article 16(4) and the other classes to Article 16(1).
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448