Justice R.M. Sahai [1]
735. Sri K. K. Venugopal, learned counsel for the petitioner in writ petition No. 930 of 1990 submits that the “provision” contemplated by clause (4) of Article 16 can be made only by and should necessarily be made by the legislative wing of the State and not by the executive or any other authority. He disputes the correctness of the holding in Balaji (AIR 1963 Supreme Court 649) negativing an identical contention. He submits that since the provision made under Article 16(4) affects the fundamental rights of other citizens, such a provision can be made only by the Parliament/Legislature. He submits that if the power of making the “provision” is given to the executive, it will give room for any amount of abuse. According to the learned counsel, the political executive, owing to the degeneration of the electoral process, normally acts out of political and electoral compulsions, for which reason it may not act fairly and independently. If, on the other hand, the provision is to be made by the legislative wing of the State, it will not only provide an opportunity for debate and discussion in the legislature where several shades of opinion are represented but a balanced and unbiased decision free from the allurements of electoral gains is more likely to emerge from such a deliberating body. Sri Venugopal cites the example of Tamil Nadu where, according to him, before every general election a few communities are added to the list of backward classes, only with a view to winning them over to the ruling party.
We are not concerned with the aspect of what is ideal or desirable but with what is the proper meaning to be ascribed to the expression ‘provision’ in Article 16(4) having regard to the context. The use of the expression ‘provision’ in clause (4) of Article 16 appears to us to be not without design According to the definition of ‘State’ in Article 12, it includes not merely the government and Parliament of India and Government and Legislature of each of the States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Article 12.
The expression ‘Local Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the Court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government ? This aspect would become clearer if we notice the definition of “Law” in Article 13(3)(a). It reads :
“13(3) In this article, unless the context otherwise requires,-
(a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; ……”
736. The words “order”, “bye-law”, “rule” and “regulation” in this definition are significant. Reading the definition of “State” in Article 12 and of “Law” in Article 13(3)(a), it becomes clear that a measure of. the nature contemplated by Article 16(4) can be provided not only by the Parliament/Legislature but also by the executive in respect of Central/State services and by the local bodies and “other authorities” contemplated by Article 12, in respect of their respective services. Some of the local bodies and some of the statutory corporations like Universities may have their own legislative wings. In such a situation, it would be unreasonable and inappropriate to insist that reservation in all these services should be provided by Parliament/Legislature. The situation and circumstances of each of these bodies may vary. The rule regarding reservation has to be framed to suit the particular situations. All this cannot reasonably be done by Parliament/Legislature.
737. Even textually speaking, the contention cannot be accepted. The very use of the word .provision” in Article 16(4) is significant. Whereas clauses (3) and (5) of Article 16 –and clauses (2) to (6) of Article 19 – use the word “Law”, Article 16(4) uses the word “provision”. Regulation of service conditions by orders and Rules made by the Executive was a well known feature at the time of the framing of the Constitution. Probably for this reason, a deliberate departure has been made in the case of clause (4). Accordingly. we hold, agreeing with Balaji, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case.
Balaji (AIR 1963 Supreme Court 649) has been followed recently in Controller and Auditor General of India v. Mohan Lal Mehrotra, AIR 1991 Supreme Court 2288. With respect to the argument of abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the political executive of the power under Article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. As held herein – as also by earlier judgments – the exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448