Joginder Singh Toor

WHAT led to the insertion of sub clause 4 to Article 16 which provides equality in matters of employment to all citizens, to any office under the State and prohibits discrimination on the grounds of religion, race, caste, sex, descent and place of birth? The State has the power under clause 4 to make any provision for the reservation of appointments and posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State. This power of the State, so exercised has led to various complications judicial and social, has given rise to multiplicity of judicial proceedings, conflicting judgments and as many as 6 constitutional amendments leading to changes, additions and subtractions to Article 15 and Article 16 by way of 1st , 7th, 77th, 81st, 85th, and 93rd constitutional amendments.

Dr. Bhim Rao Ambedkar, an ardent supporter of the rights of the dalits, was the Law Minister, in post independence in the Nehru cabinet and was the driving force for inclusion of this sub clause stated on Nov. 25,1949 before the Indian constitution came into force: “Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity, without equality liberty would produce the supremacy of a few over the many…On the social plane we have in India a society based on the principle of graded inequality which means elevation of some and degradation for others…On the economic plane we have a society in which there are some who have immense wealth as against many who live in abject poverty.” “By reason of our economic and social structure we continue to deny the principle of one man one value although we have one man one vote not one man one value... If this contradiction was not removed at the earliest possible those who suffer from inequality will blow up the structure of political democracy.”

It was the reiteration of his stand he had been taking during the struggle for the independence, and as Chairman of the drafting Committee and vanguard of the rights of the poor.

The Congress Party having passed various resolutions during freedom struggle to minimize gap between the rich and the poor, and retrieve “ill-gotten property” from zamidars and jagirdars passed land reforms acts, which when challenged in various High Courts were struck down, starting with Patna High Court declaring Bihar Land Reforms Act as voilative of Article 14 as it provided different compensation for different kinds of Zamidari as voilative of right to equality, followed by Calcutta High Court declaring State action in acquiring Bala Ji’s property, as unconstitutional and various other instances. Nehru government of which Dr. Ambedkar was the Law Minister and votaries of socialist values in the cabinet had strongly lobbied for amendment of the constitution within one year of its inception.

The Madras document, establishing selection procedure for admission to medical and engineering colleges provided a communal dimension. The provision of six non-Brahmin Hindus, two backward class Hindus, two Brahmins and so on, inviting angry reaction, challenge to the order in Madras High Court and then in the Supreme Court. The Cabinet Committee while discussing the first amendment protecting the laws relating to the agricultural reforms from challenge in courts, also discussed the admission matters on communal basis.

In order to further protect the rights of backward classes it was provided in the Ist constitutional amendment that clause 4 be added to Art. 15 empowering the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and Scheduled Tribes.

The concept of reservation enshrined in Article 16(4) has given rise to various legal and social controversies. “equality of opportunity has two different and distinct concepts. There is a conceptual distinction between non-discrimination principles and affirmative action under which the State is obliged to provide level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitutional ‘equality of opportunity’ (Supreme Court in M.Nag Raj and others Vs Union of India. The distribution of benefits by the State, to the society as a whole, resulting from social institutions, property system and public organizations, coupled with the concept of reservation, has given rise to a basic question as to, what should be the basis of distribution and what should be its extent. It has given rise to further questions such as (1) whether there is any upper limit beyond which reservation is not permissible? (2) Whether there is any limit to which seats can be reserved in a particular year?

The questions having been discussed in a number of judgments came for consideration in Indra Sawhney’s case “AIR 1993-SC-477, the Constitution Bench of the Supreme Court held that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. Justice Reddy further pointed out that Article 16(4) which protects the interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. Ultimately it was held that 50% rule should be applied to each year otherwise it may happen that (if entire cadre strength is taken as a unit) the open competition channel gets choked for some years and meanwhile the general category candidates may become age barred and ineligible. Another controversy arose with regard to the promotion channels and the catch-up rule which contemplates that if reserve category incumbent, junior to the general category incumbent is promoted on the basis of reservation and the general category candidate is lateron promoted, and if the reserve category candidate has by then not been promoted to the higher post, the general category candidate would catch him up and would be considered senior to him.

These questions gave rise to further two questions (1) can the roster point promotees count their seniority in the promoted category from the date of their continuous officiation vis-à-vis general category candidates, who were senior to them in the lower category and who were later promoted to the same level? (2) whether catch-up principles are tenable. In this context the constitutional amendments made from time to time need to be seen. In Indra Sawhney’s case, the Supreme Court has observed that the reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extend to reservation in the matter of promotion. As such only one time benefit was allowed. To nullify the judgment in Indira Sawahney’s case Sub-Clause (4-A) added by way of 77th amendment providing powers to the State “for making any provision for reservation in the matters of promotions, with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented.

The judgment of the Supreme Court in Union of India Versus Virpal Singh (1995)6 –SCC-684 and Ajit Singh Janjua (I) Vs State of Punjab, 1996-SC-1189, which disallowed the consequential seniority to the SCs & STs on their promotion on the basis of reservation. To nullify the effect of these judgments Article 16(4-A) was further amended by way of constitutional 85th amendment so as to give retrospective effect to Article 16(4-A) and empowered the State for making any provision for reservation in matters of promotion and consequential seniority.

Constitutional 81st amendment was necessitated because of non-availability of SC & ST candidates for filling up direct recruitment vacancies and these were treated as back-log vacancies and if these back log vacancies were added to the other reserved seats, these exceeded the 50% maximum mark, as provided in Indra Sawhney’s case. 81st amendment allowed the State to consider these back log vacancies as separate class of vacancies to be filled up in any existing year or years and these vacancies were not to be considered together with the vacancies of the year.

These amendments were challenged in various writ petitions, including M.Nagraj Versus Union of India, AIR 2007-SC-71 on the ground that equality is a part of the basic structure and it is impossible to conceive of the Constitution without equality as one of its central components and that equality is the basic feature referred to in the preamble to our Constitution. Further that Article 16 is integral to equality and that it has to be read with Article 14 and with several other Articles in Part-IV. Further that it places an important significance on public employment and the rule of equality, in as much as, a specific guarantee is given under Article 16 protecting equality principles in public employment. The constitution Bench of the Supreme Court came to the conclusion that the impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. ……We do not find obliteration of any of the constitutional limitations…….There is no violation of the basic structure by any of the impugned amendments. The constitutional limitation under Article 335 is relaxed and not obliterated. Article 335 provides that the claim of members of SC & ST shall be taken into consideration, consistently with the maintenance of efficiency of administration further providing that it shall not prevent the making of any provision in favour of the members of SC & ST for relaxation of qualifying marks in any examination or lowering the standard of evaluation.

The power of the State, being free to exercise its discretion of providing reservation, subject to limitation, is not to be interfered with because there must exist compelling reasons of backwardness and inadequacy of representation. All the constitutional amendments relating to reservation were up held. The concept of creamy layer (qualitative exclusion) sub-classification between OBCs on one hand and SC & ST on other hand are inbuilt. The ceiling limit of 50% was approved. However, in this regard, the State will have to show in each case the existence of compelling reasons, backwardness, inadequacy of representation and overall administrative efficiency before making provisions for reservation. The State is however, not bound to make reservation for SC & ST in matters of promotion. If, however, they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation.

The whole situation has given rise to the re-consideration of the very idea propounded by Dr. Ambedkar that “On the social plane we have in India a society based on the principle of graded inequality which means elevation of some and degradation for others.” made in his speech on November 25, 1949. The other sections of society who are socially de-graded, economically weak and living below poverty line have not been given any benefit, caste playing factor in distribution of State benefits.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

BACK