Thomman J.1
314. Reservation is the extreme limit to which the doctrine of affirmative action can be extended. Beyond the strict confines of clause (4) of Article 16, reservation in public employment has no warrant in the law for it then becomes the very antithesis of equality. While reservation is impermissible for appointment to higher posts by promotion from lower posts, any other legitimate affirmative action in favour of disadvantaged classes of citizens by means of valid classification is perfectly in accordance with the mandate of Article 16(1). It is within the discretion of the State to extent to all disadvantaged groups, including any backward class of candidates, preferences or concessions such as longer period of minimum time to pass qualifying tests etc. [See N. M. Thomas, (supra)].
315. Reservation affords backward classes of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. But it is wrong to see it as a mere weapon to capture power, as suggested at the bar. In a democracy, real power lies in the ballot and it is exercised by the majority. Any attempt to project the concept of reservation under clause (4) as a weapon of aggrandisement to gain power will result in the creation of a meaningless myth and a dangerous illusion which will ultimately distort the constitutional values.
316. It is possible that large segments of population enjoying well entrenched political advantages by reason of numerical strength may claim “backward class” status, when, on correct principles, they may not qualify to be so regarded. If such claims were to be conceded on extraneous consideration, motivated by pressures of expediency, and without due regard to the nature and degree of backwardness, the very evil of discrimination which is sought to be remedied by the Constitution would be in danger of being perpetuated in the reverse at the expense of merit and efficiency and contrary to the interests of the truly backward classes of citizens who are the constitutionally intended beneficiaries of reservation. In the words of Krishna Iyer, J.
“…..To lend immortality to the reservation policy is to defeat its raison de’etre; to politicise this provision for communal support and party ends is to subvert the solemn undertaking of Article 16(1) ……”
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, (1981) 2 SCR 185 at 203.
317. The sooner the need for reservation is brought to an end, the better it would be for the nation as a whole. The sooner we redressed all disabilities and wiped out all traces of historical discrimination, and stopped identifying classes of citizens by the stereotyped, stigmatised and ignominious label of backwardness, the stronger, healtheir and better united we have emerged as a nation founded on diverse custom, practices, religions and languages but knitted together by innumerable binding strands of common culture and tradition.
General Observations:
318. It is wrong and unwise to see affirmative action merely as a penance or an atonement for the sins of past discrimination. It is not retributive justice on wrong doers. It is corrective and remedial justice to compensate the victims of prior injustice. It is not merely focussed on reparation for past inequities. It is a forward looking balancing act of reformative social engineering; an architecture of a better future of harmonious relationship amongst all classes of citizens; an equitable redistribution of community resources with a view to the greatest happiness of the greatest number of people.
319. It is true that an important aspect of State interest in initiating affirmative action is to correct or remedy the evil effect of inequities stemming from prior discrimination, but the focus in any such action must be on the victims and not on the wrong doers. The constitutional mandate is to rescue the victims of prior discrimination and not to punish the wrong doers. The sins of the past shall not visit upon the present either by allowing its ill effects to continue or by taking retributive action as retaliation upon the wrong doers. The task of nation building is not to open up the wounds of the past, but to allow them to heal by negativing its ill effects and wiping off injustice stemming from it. Any present or continuing discrimination is, of course, remediable or punishable under the law. Removal of inequities is the raison d’etre of any affirmative action.
320. Discrimination in any form hurts as there is an element of deprivation of the legitimate expectations of classes of people upon whom the inevitable consequences of any such action must necessarily fall. Any unfair and undue deprivation of any class of people is constitutionally impermissible .
321. Reservation of posts or seats for benefit of some and to the exclusion of others is inherently unjust and unfair unless strictly brought within reasonable limits. The only legitimate object of excluding the generality of people and conferring a special benefit upon the chosen classes is to redeem the latter from their backwardness.
322. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Tribes and other classes of persons in comparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects.
323. Any attempt to view affirmative action as merely retributive or to unduly overemphasise its compensatory aspect and widen the scope of reservation beyond minority of posts or seats is to practice excessive and invidious reverse discrimination. To project particular castes as legitimate claimants for such compensatory discrimination, without due regard to the nature and degree of their backwardness, is to invite the public wrath of stigmatising prejudice against them, thereby promoting caste hatred and separatism. Any such streotyped and stigmatised approach to this soul searching sociological problem is to distort the fairness of the political and constitutional process of adjustment and readjustment amongst classes of people in our country.
324. Affirmative action is not merely compensatory justice, which it is, but it is also distributive justice seeking to ensure that community resources are more equitably and justly shared among all classes of citizens. Furthermore, from the point of view of social utility, affirmative action promotes maximum well-being for the society as a whole and strengthens forces of national integration and general economic prosperity.
325. Any benign affirmative action with a view to equality amongst classes of citizens is a constitutionally permitted programme, but the weapon of reservation must be carefully and sparingly used in order that, while the victims of past discrimination are appropriately compensated, the generality of persons striving to progress on their own merits do not become victims of excessive, unfair and invidious reverse discrimination. Affirmative action must find justification in the removal of disadvantages and not in their imposition.[1]
[1] Tribe, American Constitutional Law, 2nd Edn., (1988) pp. 1521-1554; Kathleen M. Sullivan, Sins of Discrimination; Last Term’s Affirmative Action Cases, Harvard Law Review, Vol. 100, p. 78 (1986-87); Marc Galanter, Competing Equalities, (1984); Myrl L. Duncan, The Future of Affirmative Action; A Jurisprudential/legal Critique, Harvard Civil Rights Civil Liberties Law Review, Vol. 17,1982, p. 503; The Rights of Peoples, Edited by James Crawford, Oxford (1988).
- This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448 ↩︎