397. In a legal system where the Courts are vested with the power of judicial review, on occasions issues with social, political and economic overtones come up for consideration. They are commonly known as political questions. Some of them are of transient importance while others have portentous consequences for generations to come. More often than not such issues are emotionally hyper-charged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, and sentiments run high. The Courts have, however, as a part of their obligatory duty, to decide them. While dealing with them the Courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the long term interests of the society as a whole. Such problems cannot always be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them. The present is an issue of the kind.
398. It is for the first time that a Nine Judge Bench has been constituted to consider issues arising out of the provisions for reservations in the services under the State under Article 16 of the Constitution. The obvious purpose is to reconsider, if necessary, the propositions of law so far laid down by this Court on the various aspects of the subject. While, therefore, it may be true that everything is at large and the Court is not inhibited in its approach and conclusions by the precedents, the view taken so far on certain facets of the subject, may be hard to disregard on the principle of stare decisis. This will be more so where certain situations., have crystallised and have become a part of the social psyche over a period of time. They may be unsettled only at the risk of creating avodable problems.
399. The reservation in State employment is not a phenomenon unknown to this country. It is traceable to a deliberate policy of affirmative action or positive discrimination adopted in some parts of the country as early as in the beginning of this century. It is equally known to the employment under the Central Government where reservations in favour of the Scheduled Castes and Scheduled Tribes have been in existence for a considerable time now. The reasons why the Issue has assumed agitational proportion on account of the present reservations, may be varied. While it is true that the Court is concerned with the interpretation of the provisions of the Constitution on the subject and not either with the causes of the turmoil or the consequence of the interpretation of the law, it is equally true that the Constitution being essentially a political document, has to be interpreted to meet the “felt necessities of the time”. To interpret it, ignoring the social, political, economic and cultural realities, is to interpret it not as a vibrant document alive to the social situation but as an immutable cold letter of law unconcerned with the realities. Our Constitution, unlike many others, incorporates in it the framework of the social change that is desired to be brought about. The change has to be ushered in as expeditiously as possible but at the same time with the least friction and dislocation in national life. The duty to bring about the smooth change over is cast on all institutions including the judiciary. A deep knowledge of social life with its multitudinous facets and their interactions, is necessary to decide social issues like the present one ? . A superficial approach will be counter-productive.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448