Doctors' Association for Social Equality

The Constitution and reservation

By P. B. Sawant

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 46.

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.