Constitution And Reservation
By P. B.
The principle of equality
permeates the Constitution of India. All the citizens are entitled to
be treated by the state equally, irrespective of their caste, race,
religion, sex, descent, place of birth and residence. No citizen may
be discriminated against by the state only on any of these grounds.
The exceptions to this principle are made in favour of women and children,
the backward classes, the Scheduled Castes and the Scheduled Tribes,
and the weaker sections.
Under Article 15 (3) of the
Constitution, any special provision may be made for women and children
belonging to all social groups transcending caste, religion etc., for
their advancement and welfarein all fields. Under Article 15 (4), special
provisions may be made for the advancement of any socially and educationally
backward class and for the Scheduled Castes and the Scheduled Tribes.
The "advancement" meant here is again in any field. This sub-clause
(4) of Article 15 was inserted by an amendment in 1951. Article 16 (4)
permits the state to make any provision for the reservation of appointments
or posts in favour of any backward class, which, in the opinion of the
state, is not adequately represented in the services under it. The expression
"backward class" in this sub-clause is interpreted by the
Supreme Court to mean "socially and educationally backward"
as is specifically mentioned in the sub-clause (4) added later to Article
15. Article 46 directs the state to promote with special care the educational
and economic interests of the "weaker sections of the people",
particularly of the Scheduled Castes and the Scheduled Tribes and also
directs the state "to protect them from social injustice and all
forms of exploitation". Article 335 states that the claims of the
members of the Scheduled Castes and the Scheduled Tribes shall be taken
into consideration consistently with the maintenance of efficiency of
administration in the making of appointments to the services and posts
in connection with the affairs of the Union and of a State.
Although prima facie, these
appear to be the exceptions to the citizens' right to equality before
the law or to the equal protection of the laws guaranteed by Article
14, a deeper consideration will show that in fact they enable the state
to make the right to equality a reality for the vast majority of the
backward classes which, together with the Scheduled Castes and the Scheduled
Tribes, constitute about 85 per cent of the population. The right to
equality without the capacity and the means to avail of the benefits
equally is a cruel joke on the deprived sections of the society. It
widens the social and economic inequalities progressively with the haves
making use of the guaranteed right to amass the fruits of progress,
and the have-nots remaining where they are. The exceptions enable the
state to make the deprived capable of availing of the benefits which
otherwise they would not be able to. It is to give effect to the principle
of equality that the exceptions become mandatory in any unequal society
such as ours which intends to become egalitarian. The principle of equality
is not an esoteric concept. It may be used as a constructive tool of
social engineering, for building a society based on social justice.
To treat two unequals as equals causes as much injustice as to treat
two equals unequally. The jurisprudence of equality, therefore, requires
that those below are levelled up to those above.
The exceptions made in the
Constitution are in favour of four classes for certain stated purposes,
with or without conditions (i) women and children in general,
i.e. belonging to all social groups and all the strata of the society
regardless `of class, caste, race, religion etc. [Article 15 (3)], obviously
for their all-round welfare and development (ii) the socially and educationally
backward classes and [for their advancement, Article 15(4)] (iii) the
Scheduled Castes and the Scheduled Tribes (iv) the `weaker sections',
which, in particular, include the Scheduled Castes and the Scheduled
Tribes for promoting with special care their educational and economic
interests and to protect them from social injustice and all forms of
exploitation [Article 46].
Which is this fourth category
of the "weaker sections" mentioned in Article 46? It is obvious
that they are similar in conditions to and include sections other than
the Scheduled Castes and the Scheduled Tribes, for they are `particularly'
referred to in it. It is also clear that to qualify itself to be included
in it, the section of the people has to consist of those (a) whose educational
and economic interests need to be promoted with special care, and (b)
who need to be protected from social injustice and all forms of exploitation.
Would not the purpose have
been served if the expression `backward classes' had been used instead
of `weaker sections' as done in Article 16 (4), which would mean all
the weaker sections, including the Scheduled Castes and the Scheduled
Tribes? It may be remembered here that sub-clause (4) of Article 15
was not there originally it was inserted by an amendment and
the expression `backward classes' was used with a qualification `socially
and educationally (backward classes)' and not only socially or educationally
backward but backward on both counts. Second, the Scheduled Castes and
the Scheduled Tribes were separated from the expression `backward classes'
to make a distinction between them and the other backward classes (OBCs).
The effort, it seems, has been to maintain the same distinction in Article
Incidentally, it is also
necessary to point out that the Supreme Court in all its decisions on
reservation has interpreted the expression `backward classes' in Article
16 (4) to mean the "socially and educationally" backward.
It also emphatically rejected "economic backwardness" as the
only or the primary criterion for reservation under article 16 (4) and
observed that economic backwardness has to be on account of social and
educational backwardness. When Article 46 refers to "weaker sections",
it qualifies that expression with different and more parenthetical clauses
as pointed out earlier. Although Article 46 speaks of weaker sections,
whose "economic" interests have also to be promoted along
with their "educational" interests with special care, it also
speaks of "protecting" them from all forms of "social
injustice and exploitation". Therefore, it is obvious that the
"weaker sections" referred to in Article 46 are those other
than the Scheduled Castes and the Scheduled Tribes who are backward
both socially and educationally and need to be protected from social
injustice and all forms of exploitation. Those sections, which are merely
economically weak or backward, would not qualify for promotion of their
interests under the cover of this Article.
The present system of reservation is in favour of `classes', and not
individuals. And in order that the individuals may qualify for them,
they must belong to those classes. There is no one or particular `class'
which is economically backward. All classes and social groups have economically
backward individuals. But on that account alone, a group does not qualify
to be called a backward class.
What is, however, argued
is that it is not the `upper' castes or the social groups, but the poor
individuals in the groups who should be entitled to reservation. As
has been pointed out earlier, reservation has been provided in the Constitution
for `classes', not individuals. If the individuals have to be provided
with reservation on the economic criterion, then those satisfying the
said criterion and belonging to any caste and social group, irrespective
of any distinction will be entitled to it, including the individuals
belonging to the backward classes and the Scheduled Castes and the Scheduled
Tribes. For, such reservation will fall in the general category and
all will be entitled to it whether there is reservation on other grounds
or not. A backward class person may choose to apply for reservation
on economic criterion, instead of the reservation made for his class,
or if he does not get a seat on the basis of class reservation, he may
claim a seat on economic grounds and if he is qualified for it, he cannot
be denied the same. On the other hand, he may qualify for it better
if the poorer are entitled to it. Since economic criteria, whatever
these may be, will run common through all the social groups, it will
be contrary to the right to equality and therefore unconstitutional
to keep them confined to any particular social group or groups.
Some other features of the
present reservation system may be borne in mind, which is often forgotten
by many, in their supercilious approach to the problems of reservation.
The existing reservation in state employment under Article 16 (4) is
in favour of such backward classes, which, in the opinion of the state,
are "not adequately represented" in the services. It is clear
from this provision that it is to give the "classes" adequate
representation in state administration that reservation has been made.
(The writer is a former Judge
of the Supreme Court.)