THOMMEN, J.1
262. The Constitution seeks to secure to all its citizens Justice, Liberty, Equality and Fraternity. These are the basic pillars on which the grand concept of India as a Sovereign Socialist Secular Democratic Republic rests. This splendour that is India rests on these magnificent concepts, each of which, supporting the other, upholds the dignity and freedom of the individual and secures the integrity and unity of the nation.
263. Equability is one of the magnificent cornerstones of Indian democracy[1]. Articles 14, 15 and 16 embody facets of the many-sided grandeur of equality[2]. Article 14 prohibits the State from denying to any person within the territory of India equality before the law or the equal protection of the laws. All persons in like circumstances must be treated equally. Equality is between equals. It is parity of treatment under parity of conditions. The Constitution permits valid classification founded on an intelligible differentia distinguishing persons or things grouped together from others left out of the group. And such differentia must have a rational relation to the object sought to be achieved by the law[3].
264. Any State action distinguishing classes of persons is liable to be condemned as invidious and unconstitutional unless justified as a benign classification rationally addressed to the legitimate aim of qualitative and relative equality by means of affirmative action programmes of protective measures with a view to uplifting identified disadvantaged grounds.
All such measures must bear a reasonable proportion between their aim and the means adopted and must terminate on accomplishment of their object. Any legitimate affirmative action rationally and reasonably administered is an aid to the attainment of equality. In the words of Judge Tanaka of the International Court of Justice :
“……The principle is that what is equal is to be treated equally and what is different is to be treated differently, namely proportionately to the factual difference. This is what was indicated by Aristotle as justice commutativa and justitia distrubutiva”.
“….the principle of equality before the law does not mean the absolute equality, namely equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal”.
“…..To treat unequal matters differently according to their inequality is not only permitted but required …..”[4]
265. While Article 14 prohibits the State from denying equality to any person, Articles 15 and 16 are specially concerned with citizens. Article 15(1) prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Cl. (4) of Article 15 provides that despite the prohibition contained in Article 29(2) against denial of admission to any citizen into any educational institution maintained or aided by the State on grounds only of religion, race, caste, language or any of them, the State is nevertheless free to make ‘any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes’.
266. These provisions of Article 15 have been construed by this Court in a number of decisions. It is no longer in doubt that, in order to receive the protection of Cl. (4), the classes of people in favour of whom special provisions are made should necessarily be both socially and educationally backward (and not either socially or educationally backward) or should have been notified by the President as the Scheduled Castes or the Scheduled Tribes in terms of Article 341 or 342.[5]
267. Apart from the Scheduled Castes and the Scheduled Tribes to whom the special provisions, once notified by the President under Articles 341 and 342, undoubtedly apply, the other ‘backward classes’ of citizens to whom the special provisions can be extended are not merely backward but are socially and educationally so backward as to be comparable to the Scheduled Castes and the Scheduled Tribes. As stated by this Court in M.R. Balaji v. State of Mysore, (1963) Supp SCR 439 at 458 :
“…..the Backward classes for ‘whose improvement special provision is contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes”.[6]
268. In the Constituent Assembly during the discussions on draft Article 10 (Art. 16), several members belonging to the Scheduled Castes or the Scheduled” Tribes expressed serious apprehension that the expression ‘backward’ was not precise and large sections of people who did not belong to the Scheduled Castes or the Scheduled Tribes were likely to claim the benefit of reservation at the expense of the truly backward classes of people. They sought clarification that the expression ‘backward’ applied only to the Scheduled Castes and the Scheduled Tribes. (See B. Shiva Rao, The Framing of India’s Constitution -A Study, (1968) pp. 198-199). K. M. Munshi, in his reply to this criticism, pointed out :
“…..What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State -highest efficiency -which would enable the services to action effectively and promptly. At the same time, in view of the conditions in our country prevailing in several Provinces, we want to see that backward classes, classes who are really backward should be given scope in State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and the word ‘backward class’ was the best possible term. When it is read with Article 301 it is perfectly clear that the word ‘backward’ signifies that class of people does not matter whether you call them untouchables or touchables, belonging to this community or that,- a class of people who are so backward that special protection is required in the services and I see no reason why any member should be apprehensive of regard to the word ‘backward’.”[7]
Dr. Ambedakar, in his general reply to the debate on the point, stated thus :
“….If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as ‘backward’ the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain …..”
[1] Smt. Indira Nehru Gandhi v. Shri Raj Narain, (1976) 2 SCR 347, 659; Minerva Mills Ltd. v. Union of India, (1981) 1 SCR 206, 241; Waman Rao v. Union of India, (1981) 2 SCR 1
[2] The General Manager, Southern Railway v. Rangachari, (1962) 2 SCR 586, 597 (AIR 1962 Supreme Court 36); State of Kerala v. N. M. Thomas, (1976) 1 SCR 906, 956
[3] State of Kerala v. N.M. Thomas, (1976)1 SCR 906. See also Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, (1459) SCR 279
[4] South West Africa Cases (Second Phase), ICJ Rep. p. 6, 305-6
[5] M.R. Balaji v. State of Mysore, 1963 Supp (1) SCR 439
[6] See also Kumari K.S. Jayasree v. State of Kerala, (1977) 1 SCR 194, 198; Janki Prasad Parimoo v. State of Jammu & Kashmir, (1973) 3 SCR 236, 252; State of Uttar Pradesh v. Pradip Tandon, (1975) SCR 761, 766; State of Kerala v. N.M. Thomas, (1976) 1 SCR 906, 997; State of Andhra Pradesh v. P. Sagar, (1968) 3 SCR 595, 600; K. C. Vasanth Kumar v. State of Karnataka, (1985) Suppl 1 SCR 352, 376
[7] Constituent Assembly Debates, Vol. 7, (1948-49), p. 697
- This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448 ↩︎