Kuldip Singh, J.[1]
360. Over a period of four decades this Court under a mistaken view read the expression “any backward class of citizens” in Article 16(4) to mean the same as “backward classes of citizens” in Article 15(4). Having held that the two Articles operate in different fields, the crucial question which falls for consideration is what is meant by the expression “Any backward class of citizens……..not adequately represented in the services under the State” in Article 16(4).
361. A layman’s look at Article 16(4) gathers the impression that the reservation under the said Article is permissible for the backward classes of citizens who are not adequately represented in the services under the State. But on closer scrutiny and examination it is clear that the reservations under Article 16(4) are provided for classes of citizens which are not adequately represented in the State Services. The original draft article 10(3) (corresponding to Article 16(4)) was as under :
“10(3) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or -posts in favour of any class of citizens who, in the opinion of the State, are not adequately represented in the services under the State.”
362. Reading the original draft Article 10(3) leaves no manner of doubt that the manifest intention of the Framers of the Constitution was to provide reservation for those classes of citizens who are not adequately represented in the State services. It is common knowledge that during the British regime the State services were packed from amongst the person’s who were on the right side of the regime. Mass of the Indian people who were active in the freedom struggle were kept out of State services. Article 16(4) was enacted with the sole purpose of giving representation to the classes of citizens who are not adequately represented therein. The sine qua non for providing reservation is the inadequate representation of the class concerned in the State services.
363. The word “backward” was inserted in the draft Article 10(3) by the Drafting Committee before the draft was finalised. The insertion of the word “backward” at a later stage did not change the intention with which the original draft Article 10(3) was brought into existence. Fortunately, for the people of this country, there are lengthy deliberations in the, Constituent Assembly Debates which show the purpose and the object of adding the. word “backward” in the draft Article 10(3). Dr. Ambedkar in his speech before the Constituent Assembly gave the object and purpose of enacting original draft Article 10(3) and also gave elaborate reasons for inserting the word “backward” in the said Article. The said speech is reproduced hereunder
“Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the administration. If honourable Members will bear these facts in mind – the three principles, we have to reconcile, – they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of Article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now – for historical reasons – been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services.
Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent. of the total posts under the State and only 30 per cent. are retained as the unreserved. Could anybody say that the reservation of 30 per cent. as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity ? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. 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. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word “backward” which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly”. (Constituent Assembly Debates, Vol. 7, 1948-49 pages 701-702).
364. Dr. Ambedkar stated in clear terms that draft Article 10(3) now Article 16(4) was brought in by the framers of the Constitution to provide “reservations in favour of certain communities which have not so far had a ‘proper look-in’ so to say into the adminitration”. He nowhere stated that the reservations were meant for backward classes. According to him, the Article was enacted with the object of providing reservation to those classes of citizens who are not adequately represented in the State-Services. Dr. Ambedkar further elaborated the point when he stated “the administration which has now – for historical reasons – been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services”. Dr. Ambedkar was not referring to backward or non-backward communities, he was only referring to the communities which were dominating the public services and those which were not permitted to enter the said services. While making it clear that the reservations are meant for those classes of citizens who are inadequately represented in the State-Services, Dr. Ambedkar visualised that conceding in full the demand of such communities, reserving majority of the seats for them and leaving minority of the seats unreserved, would render the guarantee under Article 16(1) nugatory. He illustrated the point by giving figures and stated that a safeguard was to be provided so that majority of the appointments/posts in the State-services are not consumed in the process of reservation. It was for that purpose, according to Dr. Ambedkar, the expression “backward” was inserted in the draft Article 10(3). The object of adding the word “backward” was only to reduce the number of claimants for the reserve posts. Instead of the whole class having inadequate representation in the State-services only the backward section of that class is made eligible for the reserve posts. in a nutshell, the reservation under Article 16(4) is not meant for backward classes but for backward sections of the classes which are not adequately represented in the State-services. There may be a class which is inadequately represented in the State-services and it may be backward as a whole, like the Scheduled Castes and the Scheduled Tribes. Such a class as a whole is eligible for the reserve Posts.
365. “Not adequately represented in the services under the State” is the only test for the identification of a class under Article 16(4). Thereafter the ‘Backward class’ has to -be culled-out from out of the classes which satisfy the test of inadequacy.
366. Under the Constitution the “backward class’ which has been identified for preferential treatment is the “socially and educationally backward” class. The Constitutional-scheme is explicit. Articles 340 and 15(4) make it clear that wherever the Constitution intended to provide special compensatory treatment for the “backward classes” they have been defined as ‘socially and educationally backward’. Article 16(4) is not in line with Articles 340 and 15(4). Article 16(4) does not provide job-reservations for the backward classes. That is why the expression “socially and educationally backward” has not been used therein. The classes of citizens to be identified under Article 16(4) are those who are not adequately represented in the services under the State.
367. Examine it from another angle. If the job-reservations under Article 16(4) are meant for “any backward class” then the expression “…not adequately represented”‘ has to be read in relation to the said class. Can it be done ? Is it possible to classify the backward classes into those who are adequately represented in the State-services and those who are not ? Can a class which is adequately represented in the State-services be considered backward ? Negative is the answer to all these questions. A class which is adequately represented in the State-services cannot be considered a backward class. A class may not be backward even if it has inadequate representation in the State-services but once it secures adequate representation in the State-services it no longer remains backward. It is not possible to read the expression “not adequately represented” in Article 16(4) in relation to “any backward class”. If you do so then the said expression is rendered redundant. To make every word of Article 16(4) meaningful and workable the said expression can only be read in relation to “class of ‘citizens”.
368. Yet another way to examine. Scheduled castes and Scheduled tribes are a ‘class’ by themselves and the Constitution permits protective discrimination to compensate them. Reservation of seats in the House of People and the Legislative Assemblies have been provided for them. Article 335 is special provision for taking into consideration their claims in the appointments to State-services.. Had there been an intention to provide job reservations in favour of weaker sections of society or for the ‘socially and educationally backward classes’ then scheduled castes and scheduled tribes would have been the first to be provided for by specific mention in Article 16(4). It is idle to say that the expression ‘backward class of citizens’ would. include them. Article 15(4) uses the expression” ……. any special provision for advancement of any socially and educationally backward classes of citizens or for the scheduled castes, and the scheduled tribes”. Similarly Article 46 provides “The State shall promote weaker section of the people, and, in particular, of the scheduled castes and scheduled tribes ……” Thus whereever in the Constitution special protection has been provided for socially and educationally backward classes the scheduled castes and scheduled tribes have been specifically mentioned along with. Article 16(4) does not give protection to either of the two, it only provides for those who are inadequately re-presented in the State services. If the ‘scheduled caste and scheduled tribes’ and “socially and educationally backward classes” qualify the test of inadequacy they are eligible for the reserved seats under Article 16(4). The scheduled castes and scheduled tribes being the weakest of the weak per se satisfy the test.
369. The condition precedent for a class to get benefit under Article 16(4) is not its backwardness but its inadequacy in State-services. Once inadequacy is established and the classes on that test. are identified then the backward sections of those classes become eligible to the benefit of reservation. Classes, which are inadequately represented, can be identified by occupation, economic criterion, family income or from political sufferers, border areas, backward areas, communities kept out of State-services by the British or by any other method which the State may adopt. Once a class which is inadequately represented, is identified it is only the backward section of that class which is eligible for job reservations. Backward section can be culled-out by adopting a means test, or on the basis of social, educational or economic backwardness. Once the classes are identified there can be no difficulty for the State to find out the backward-parts of those classes.
370. Mandal has identified 52% population of this country as backward. 22% have already been identified as Scheduled Castes and Scheduled Tribes. In a country with a population of 850 million people—74% of which is backward —–job reservation can hardly be the source of reducing social and economic disparities in the society. Even the Mandal Report has characterised the job reservations as “Palliatives”. The Framers of the Constitution with secularism, egalitarianism, integrity and unity as their avowed objects could not have permitted horizontal division of the country into backward and non-backward for the sake of job-reservations.
371. I, therefore, hold that Article 16(4) permits reservation of appointments/posts in favour of classes of citizens which in the opinion of the State are not adequately represented in the services under the State Once such classes are identified then the reserve posts are offered to the backward sections of those classes.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448