Article 16(4) expressly permits the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State. As the power conferred on the State under this clause (4) is to be exercised only if ‘in the opinion of the State’ that there is no adequate representation in the services under the State, a vital question arose for consideration whether the issue of determination by the State as to whether a particular class of citizens is backward or not is a justiciable one ?
This question was answered by the Constitution Bench of Supreme Court in Trilok Nath Tiku v. State of Jammu & Kashmir, 1967(2) SCR 265 holding thus:
“While the State has necessarily to ascertain whether a particular class of citizens are backward or not, having regard to acceptable criteria, it is not the final word on the question; it is a justiciable issue. While ordinarily a Court may accept the decision of the State in that regard, it is open to be canvassed if that decision is based on irrelevant considerations. The power under clause (4) is also conditioned by the fact that in regard to any backward classes of citizens there is no adequate representation in the services under the State. The opinion of the State in this regard may ordinarily be accepted as final, except when it is established that there is an abuse of power.”
The words “backward class of citizens” occurring in Article 16(4) are neither defined nor explained in the Constitution though the same words occurring in Article 15 (4) are followed by a qualifying phrase, “Socially and Educationally”.
Though initially, Article 10(3) of the draft Constitution did not contain the qualifying word ‘backward’ preceding the words ‘class of citizens’ the said qualifying word was subsequently inserted on the suggestion of the Drafting Committee. Strong objection was taken for insertion of the word ‘backward’ and more so for the introduction of Article 10 (3) of the Draft Constitution. Amendments were moved by one section of the members of the Constituent Assembly for complete deletion of clause (3) and by another section for the omission of the word ‘backward’.
The discussion and debate took place at length for and against the introduction of clause (3) as well as for the insertion of the word ‘backward’. Before the motions for amendments were put on vote, Dr. B. R. Ambedkar in answering the scathing criticism made in the course of the debate and explaining the significance of clause (3) of Article 10 with the qualifying word ‘backward’ and insisting the sustenance of the said clause emphatically expressed his views as follows :
“I am not prepared to say that this Constitution will not given rise to questions which will involve legal interpretation or judicial interpretation. In fact, I would like to ask Mr, Krishnamachari if he can point out to me any instance of any Constitution in the world which has not been a paradise for lawyers, I would particularly ask him to refer to the vast storehouse of law reports with regard to the Constitution of the United States, Canada and other countries. I am therefore not ashamed at all if this Constitution hereafter for purposes of interpretation is required to be taken to the Federal Court. That is the fate of every Constitution and every Drafting Committee, I shall therefore not labour that point at all.”
While winding up the debate he 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…..that no better forumla could be produced than the one that is embodied in 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………Supposing for instance, we are to concede in full the demand of those communities who have not been so far employed in the pubic 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 ……………………… 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 ……………….. Somebody asked me; “What is a backward community” ?
Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend Mr. T. T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.”
(Emphasis supplied)
(Constituent Assembly Debates, Volume VII Pages 700-703).
After the debate, two motions were put to vote but they were negatived. The unexpurgated draft Article 10(3) corresponds to the present Article 16(4) of the Constitution.