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June 9, 2003


The Constitution, Equality and Reservations


by Justice P.B. Sawant (Retd.)


The principle of equality permeates the entire Constitution of India. All citizens are entitled to be treated by the State equally, irrespective of their caste, race, religion, sex, descent, place of birth, residence or any of them. Conversely, 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 Tribes and the weaker sections of the people.


Under Article 15 (3), any special provision may be made for women and children in general and belonging to all social groups transcending the castes, religion etc., obviously for their advancement and welfare in all fields. Under Article 15 (4), special provisions may be made for the advancement of any socially and educationally backward classes 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 favor of any backward class, which in the opinion of the State is not adequately represented in the services under the State. The expression “backward class” in this sub-clause in interpreted by the Supreme Court to mean “socially and educationally backward” as is specifically mentioned in the later added sub clause (4) 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” and in particular 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 Tribes constitute about 85% of the population. The right to equality without the capacity and the means to avail of the benefits equally is a cruel joke practiced 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 do. 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 egaliterian. 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 equally causes as much injustice as to treat two equals unequally. The jurisprudence of equality therefore requires that those below are leveled up to those above.


            The exceptions made in the Constitution are in favour of four classes, and for certain stated purposes with or without conditions- (i) women and children in general i.e. belonging to all social groups and all 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 caste and the Scheduled Tribes (iv) the ‘weaker sections’ of the people which in particular includes the Scheduled Caste and 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 also includes sections other than the Scheduled Castes and 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 be (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’ was used instead of ‘weaker section’ as is done in Article 16 (4) which would include all weaker sections including the scheduled caste and tribes? It may be remembered here that sub clause (4) of Article 15 was not there originally. As pointed out earlier, it came to be inserted by an amendment in 1951 and the expression ‘backward classes’ was used there with a qualification ‘socially and educationally (backward classes)’ and not only socially or educationally backward but backward on both counts. Secondly, the Scheduled Castes and the Scheduled Tribes were separated from the expression backward classes there to make a distinction between them and the other backward classes. Hence the popular expression ‘the other backward classes’ or O.B.C. The same distinction seems to have been tried to be maintained in Article 46. Incidently, it is also necessary to point out that the Supreme Court in all its decisions on the reservations, has interpreted the expression ‘backward classes’ in Article 16 (4) to mean “Socially and educationally’ backward although Art.  16(4) only mentions “backward classes”. It also emphatically rejected ‘economic backwardness’ as the only or the primary criterion for the reservations under article 16(4) and observed that the economic backwardness has  to be on account of the social and the educational backwardness. When Art.46 refers to “weaker sections” it qualifies that expression with different and more parenthetical clauses as is pointed out earlier. Although Art. 46 speaks of weaker sections whose “economic” interests have also to be promoted along with their “educational” interests with special care, it also further speaks of ‘protecting’ them from all forms of ‘social injustice and exploitation’, therefore it is obvious that the “weaker sections” referred to in Art. 46 must be those sections other than the Scheduled Caste and Tribes which are backward both socially and educationally and who 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.


            It has become necessary to analyze the legal position with regard to the reservations under the Constitution a little lengthily in view of the present competition among the politicians to promise reservations to the higher castes in the State employment and in the educational institutions run by the State. What is further not appreciated by the “well wishers” of the higher castes is that the present reservations are in favour of the ‘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 a particular ‘class’ in our society which is economically backward. All classes and social groups have economically backward individuals in small or large numbers. But on that account alone, a group does not qualify itself to be called a backward class.

            What is however argued is that it is not the higher castes or the social groups, but the poor individuals in the group who should be entitled to the reservations. As has been pointed out earlier, the reservations have been provided by the Constitution for the ‘classes’ and not for the individuals. If the individuals have to be provided with the reservations on the economic criterion, then the individuals satisfying the said criterion and belonging to any caste and social group irrespective of any distinction will be entitled to have them, including the individuals belonging to the backward classes and the scheduled castes and the scheduled tribes. For such reservation will fall in a general category and all will be entitled to them whether there are reservations or not on other grounds. A backward class individual may choose to apply for reservation on economic criterion, instead of, for the reservation kept for his class, or if he does not get a seat in the reservations kept for his class, he may claim a seat in the reservations kept on the economic criterion 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 is entitled to it. Since the economic criterion, whatever it may be, will run common through all the social groups, it will be contrary to the right to equality guaranteed by the Constitution and therefore unconstitutional, to keep reservation on the economic criterion confined to any particular social group or groups.


            Some other features of the present reservations may be borne in mind, which are often forgotten by many, in their supercilious approach to the problems of the reservations. The present reservations in the State employment under Article 16 (4) are 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 given the “classes” an adequate representation in the State administration, that these reservations are made. It will be doing violence to the intention of the framers of the Constitution to keep reservations in favour of the classes or social groups which are not only adequately but more than adequately represented in the administration. The need is to ensure balance in the administration. As far as the scheduled castes and the scheduled tribes are concerned, Art. 335 states that ‘their claims’ to the services ‘will be taken into consideration’ consistent with the maintenance of the efficiency of the administration.’ It is obvious that even the claims of this most neglected section of the society may be taken into consideration only after bearing the stated limitation in mind.



9th June, 2003. 




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