Justice R.M. Sahai [1]
589. Use of expression, ‘nothing in this Article shall prevent Parliament’ in Article 16(4) cannot be read as empowering the State to make reservation under Article 16(4) on race, religion or caste. It would result in regenerating the communal representation in services infused by Britishers by different orders issued from 1924 to 1946. How such an expression should be interpreted need not be elaborated. Both the text books and judicial decisions are full of it. To comprehend the real meaning the provision itself, the setting or context in which it has been used, the purpose and background of its enactment should be examined, and, interpretational exercise may be resorted to only if there is a compelling necessity for it. In earlier decisions rendered by the Court till sixties Article 16(4) was held to be exception to Article 16(1). But from 1976 onwards it has been understood differently. Today Articles 16(1) and 16(4) are understood as part of one and same scheme directed towards promoting equally. Therefore what is destructive of equality for Article 16(1), would apply equally to Article 16(4). The non obstante clause was to take out absolutism of Article 16(1) and not to destroy the negatism of Article 16(2).
590. Rule of statutory construction explained by jurists is to adopt a construction which may not frustrate the objective of enactment and result in negation of the objective sought to be achieved. Rigour of its application is even more severe in constitutional interpretation as unlike statute its provisions cannot be amended or repealed easily. Accepting race, religion and caste as the remedy to undo the past evil would be against constitutional spirit, purpose and objectives. As stated earlier this remedy was adopted by the framers of the Constitution for SC/ST. What was not provided for others should be deemed, on principle of interpretation, not to have been approved, and accepted. Even if two constructions of the provisions could have been possible, ‘the Court must adopt that which will ensure smooth, and harmonious working of the Constitution and eschew the other which will lead to absurdity and given rise to practical inconvenience’. Since acceptance of caste, race or religion, would be destructive of the entire constitutional philosophy and would be contrary to the Preamble of the Constitution it cannot be accepted as legal method of identification of backward classes for Article 16(4).
591. Would the consequences be different if race, religion or caste etc. are coupled with some other factors ? In other words, what is the effect of the word, ‘only’ in Article 16(2). In the context it has been used it operates, both, as permissive and prohibitive. It is permissive when State action, legislative or executive, is founded on any ground other than race, religion or caste. Whereas it is prohibitive if it is based exclusively on any of the grounds mentioned in Article 16(2). Javed’s case furnishes best illustration of the former. A notification discriminating between candidates. of North Eastern States, Tripura, Manipur etc. on the one hand and others for IAS examination and exempting them from offering language pasper compulsory for everyone was upheld on linguistic concession. When it comes to any State action on race, religion or caste etc. the word, ‘only’ mitigates the constitutional prohibition. That is if the action is not founded, exclusively, premerely, on that which is prohibited then it may not be susceptible to challenge. What does it mean ? Can a State action founded on race, religion caste etc. be saved under Article 16(2) if it is coupled -with any factor relevant or irrelevant. What is to be remembered is that the basic concept pervading the Constitution cannot be permitted to be diluted by taking cover under it. Use of word, ‘only’ was to avoid any attack on legitimate legislative action by giving it colour of race, religion or caste. At the same time it cannot be utilised by the State to escape from the prohibition by taking recourse to such measures which are race, religion or caste based by sprinkling it with something other as well. For instance, in, State of Rajasthan v. Pradip Singh, (AIR 1960 Supreme Court 1208) where exemption granted to Muslims and Harijans from levy of cost for stationing additional police force was attempted to be defended because the notification was not based, ‘only’ on caste or religion but because persons belonging to those communities were found by the State not to have been guilty of the conduct which necessitated stationing of the police force it was struck down as discriminatory since it could not be shown by the State that there were no law abiding persons in other communities. Similarly identification of backward class by such factors as dependence of group or collectivity on manual labour, lower age of marriage, poor schooling, living in kuccha house etc. and applying it to caste would be violative of Article 16(2) not only for being caste based but also for violation of Article 14 because it, excludes other communities in which same factors exist only because they are not Hindus. Further the group or collectivity, thus, determined would not be caste coupled with other but on caste and caste alone.
592. Today if Article 16(2) is construed as justifying identification of backward class by equalizing them with those castes in which the customary marriage age is lower or majority of whom are living in kuccha houses or a sizeable number is working as manual labour then tomorrow the identification of backward class amongst other communities where caste does not exist on race or religion coupled with these very considerations cannot be avoided That would result in making reservation in public services on communal considerations. An interpretation or construction resulting in such catastrophical consequences must be avoided Javed Beg v. Union of India (AIR 1981 Supreme Court 794)
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593. Backward used in Article 16(4) is wider than socially and educationally used in Article 15(4) and weaker sections used in Article 46. SC/ST are covered in either expression. But same cannot be said for others. Backward, cannot be defined as was, wisely, done by the Constitution makers. It has to emerge as a result of interaction of social and economic forces. It cannot be static. Many of those who were sudras in 17th and 18th Centuries ceased to be so in 19th and 20th Century due to their educational advancement and social acceptability. Members or various backward communities, both, in South and North who were moving upwards even before 1950 compare no less in education, status, economic advancement or political achievement with any other class in’ society. The average lower middle class of Muslim or Christian may not be better educationally or economically and in many cases even socially than the intermediate class of backward class of Sri Naik’s list. For instance the Bhistis (the water carriers in leather bags) among Muslim. Does Article 340 empowering President to ascertain educational and social backwardness of citizens of this country not include those poor socially degraded and educationally backward. Are they not citizens of this country ? Could, backwardness of Muslims, Christians and Buddhists be recognised for purposes of Article 16(4) only if they were converts from Hinduism or such backwardness for preferential treatment be recognised only if a group or class was Hindu at some time or was occupationally comparable to Hindus. That is if members of other community carry on occupation which is not practised by Hindus, for instance bhisties amongst Muslims, then they cannot be regarded as backward class even if it has been their hereditary occupation and they are socially, educationally and economically backward. A Commission appointed under Article 340 by the President is not to identify Hindu backwards only but the backward class within the territory of India which includes Hindu, Muslim, Sikh or Christian etc. born and residing in India within meaning of Article 5 of the Constitution. The expression is not only backwardclass but backward class of citizens. And citizen means all those who are mentioned in Articles 5 and 10 of the Constitution.
594. Thus neither from the language of Article 16(4) nor the literal test of interpretation nor from the spirit or purpose of interpretation nor the present day social seeking, warrants construction of the expression backward class as backward caste. Consequently what comes out of the examination from different aspects leads to conclusion that :
(1) Backward class, in Article 16(4) cannot be read as backward caste.
(2) Expression ‘backward class’ is of wider import and there being no ambiguity or danger of unintended injustice in giving its natural meaning it should be understood in its broader and normal sense.
(3) Backward class under Article 16(4) is not confined to erstwhile sudras or depressed classes or intermediate backward classes amongst Hindus only.
(4) Width of the expression includes in its fold any community Hindu, Muslim, Christian, Sikh, Budha, or Jain etc. as the expression is ‘backward class of citizens’
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595. Reason for backwardness or inadequate representation in services of backward Hindus prior to 1950 were caste division, lack of education, poverty, feudalistic frame of society, and occupational helplessness. All these barriers are disappearing Industrialisation has taken over. Education, through State effort and due to awareness of its importance, .both, statistically and actually has improved. Feudalism died in fifties itself. Even the Mandal Commission accepts, this reality.*81 Any identification of backward class for purposes of reservation, therefore, has to be tested keeping in view these factors as the exercise of power is in presentii. Importance of word ‘is’ in Article 16(4) should not be lost of Backwardness and inadequacy should exist on the date the reservation is made. Reservation for a group which was educationally, and socially backward before 1950 shall not be valid unless the group continues to be backward today. The group should not have suffered only but it should be found to be suffering with such disabilities. If a class or community ceases to be economically and .socially backward or even if it is so it is adequately represented then no reservation can be made as it no more continues to be, backward even though it may not be adequately represented in service or it may be backward but adequately represented.
595. Ethical Justification for reverse discrimination or protective benefits or ameliorative measures emanates from the moral of compensating such class or group for the past injustices inflicted on it and for promoting social values. Both these aspects are fully borne out from the Constituent Assembly Debates. Anxiety was to uplift the backward classes by enabling them to participate in administration as they had been excluded by few who had monopolised the services, Objective was to change the social face as it shall advance public welfare, by demolishing rigidity of caste, promoting representation of those who till now were kept away thus providing status to them, restoring balance in the society, reducing poverty and increasing distribution of benefits and advantages to one and all. The compensatory principle implies that like individual a group or class that has remained backward, for whatever reason, should be provided every help to overcome the shortcomings but once disadvantage disappears the basis itself must go. For instance there may be four groups of different nature deserving such protection. Some of it may improve and come up in the social stream within short time. Can it be said that since they were kept excluded for hundred years the compensation by way of protective benefits should continue for hundred years. That would be mockery of protective discrimination. The compensation principle, ‘makes little sense unless it is involved in connection with assertion that the malignant effects of prior deprivation are still continuing.*82 The social utility of preferential treatment extended to the disadvantage and weaker too should not be pushed too far on what happened in the past without looking to the present. Such construction of Article 16(4) arises not because of what has been said by some of the American judges but on plain and simple reading of the word, ‘is’ in the Article.
596. An egalitarian society or welfare State wedded to secularism does not and cannot mean a social order in which religion or caste ceases to exist. ‘India is a secular but not an anti-religious State. Seervai – Constitution Law of India p 897
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448