Justice R.M. Sahai [1]
741. In Balaji (AIR 1963 Supreme Court 649) it was held – “there is no doubt that Article 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2)”. It was observed that Article 15(4) was inserted by the First Amendment in the light of the decision in Champakam (AIR -1951 SC 226), with a view to remove the defect pointed out by this Court namely, the absence of a provision in Article 15 corresponding to Clause (4) of Article 16. Following Balaji (AIR 1963 Supreme Court 649) it was held by another Constitution Bench (by majority) in Devadasan (AIR 1964 Supreme Court 179) – “further this Court has already held that clause (4) of Article 16 is by way of a proviso or an exception to Clause (1)”. Subbarao, J., however, opined in his dissenting opinion that Article 16(4) is not an exception to Article 16(1) but that it is only an emphatic way of stating the principle inherent in the main provision itself. Be that as it may, since the decision in Devadasan, it was assumed by this Court that Article 16(4) is an exception to Article 16(1).
This view, however, received a severe set-back from the majority decision in State of Kerala v. N.M. Thomas, 1976(1) SCR 906. Though the Minority (H. R. Khanna and A. C. Gupta, JJ,) stuck to the view that Article 16(4) is an exception, the majority (Ray, C. J., Mathew, Krishna Iyer and Fazal Ali, JJ.) held that Article 16(4) is not an exception to Article 16(1) but that it was merely an emphatic way of stating a principle implicit in Article 16(1). (Beg, J. took a slightly different view which it is not necessary to mention here). The said four learned Judges – whose views have been referred to in para 41 -held that Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State.
Accordingly, We hold that clause (4) of Article 16 is not exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1).
The speech of Dr. Ambedkar during the debate on draft Article 10(3) (corresponding to Article 16(4) in the Constituent Assembly – referred to in para 28 – shows that a substantial number of members of the Constituent Assembly insisted upon a “provision (being made for the entry of certain communities which have so far been outside the administration”, and that draft clause (3) was put in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with clause (1). Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.
742. Regarding the view expressed in Balaji (AIR 1963 Supreme Court 649) and Devadasan (AIR 1964 Supreme Court 179), it must be remembered that at time it was not yet recognised by this Court that Article 16(1) being a facet of Article 14 does implicitly permit classification. Once this feature was recognised the theory of clause (4) being an exception to clause (1) became untenable. It had to be accepted that clause (4) is an instance of classification inherent in clause (1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) then it is equally an exception to clause (2). Question then arises, in what respect is clause (4) an exception to clause (2), if ‘class’ does not mean ‘caste’. Neither clause (1) nor clause (2) speak of class. Does the contention mean that clause (1) does not permit classification and therefore clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448