Uncategorized B.B Bagga And V.K Diwan

Article 16 of Constitution of India

ARTICLE 16

If we view the constitutional scheme of fundamental rights in a scientific perspective, we can broadly reach a conclusion that if the effulgence of Article 14 is treated as an ‘incident ray’, Articles 15 to 18 necessarily appear on the specified surfaces as ‘reflection rays’, in consonance with laws of reflection.

The text of the said Article 16 reads as under;

  1. Equality of opportunity in matters of public employment
  2. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,
  3. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
  4. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
  5. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or 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.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.

  1. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

 

Analogous provisions in other constitutions;

  1. Article VI of the constitution of United States
  2. ii) Section 116 Of Commonwealth Of Australian Constitution Act
  • iii)Section 275 and298 (1) of Government of India Act 1935, article 29 of the constitution of People’s Republic of Bangladesh

Amendment of Article 16: This Article is amended by the Constitution (Seventh amendment) Act 1956, by the Constitution (seventy seventh) amendment Act 1995 and also by the Constitution (eighty first amendment) Act 2000. Clause (4A) empowers the State to make any provisions for reservation in promotion in Government jobs in favour of SC’s and ST’s if the State is of the opinion that they are inadequately represented in the services under the State. This amendment is made to nullify the effect of the Supreme Court decision in Indra Sawhney v Union of India (AIR 1993 SC 477) in which the Supreme Court held inter alia that reservation in promotion ought not to be made. The new clause (4B) ends the 505 ceiling on reservation for SC, ST and OBC in backlog vacancies which could not be filled due to the non availability of eligible candidates of these classes in the previous years. The new clause provides that the unfilled vacancies would be treated as a separate class and would be filled in succeeding year or years and will not be counted with vacancies of the year in which they are being filled up, even if the limit of 50% imposed by the Supreme Court in Indra Sawhney’s case (AIR 1993 SC 477) is crossed. In that case 50% limit was laid down for both current as well as backlog vacancies. This Article was affected by the Constitution (Eighty-second Amendment) Act 2000 which is intended to restore the relaxation in qualifying marks and standard of evaluation for job reservation and promotion of Scheduled Castes and Scheduled Tribes by inserting a new proviso to Article 335 of the Constitution.

Constitutional (Eighty Fifth Amendment) Act 2001:

By this amendment the words “in matters of promotion to any class” in clause (4A) are to be substituted by the words “in matters of promotion, with consequential seniority, to any class” with retrospective effect from 17th June 1995.

The fundamental right under article 16 is ‘equality of opportunity’ and not ‘reservation’ per se. Thus the seekers of a right to the concession of reservation are barred from invoking Article 32 for enforcement of their claim for reservation.

In the sociological perspective the following words of Emile Durkheim an eminent sociologist hold an important message for any nation grappling with the grave challenges of constitutionalism. We, in India, need to travel beyond the stark reality of political paradigms questioning the concept of a nation through a painful metaphor: Delhi, A capital In Search of a Nation. The nucleus of nationhood is fraternity and promotion of fraternity is avowed ideal enshrined in the preamble of the constitution of India. In this regard, an eminent sociologist Emile Durkheim opines:

“Law is a social fact: the collective consciousness of the society codified to govern acts of citizens in order to ensure social harmony. More specifically, civil law codifies norms of conduct between individuals in society; although acts which are categorized as criminal acts are done against individuals, they are an attack on the organic solidarity of society. Criminal acts are thus not only harmful to their victims but also to the society.”

The ‘social harmony’ theme of jurisprudence is profound and abstract, especially in a democracy with extraordinary complex diversity, across the length and breadth of its social trajectories. The pursuit of gaining the confidence of amorphous and diversity-ridden masses describable as the ‘otherness’ of society ( the alienated and politically hostile segments of society) by a political leader is a great challenge for the  Indian society. However, India, a nation quintessentially representing an age old civilization, has been engaging itself quite energetically in this critical challenge of conquering ‘otherness’ with irrepressible political Will and will certainly succeed in its earnest endeavours.

While dwelling upon the details of such complex legal issues, Hon’ble Supreme Court stated as under;

“The principle of equality is a delicate, vulnerable and supremely precious concept for our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the ‘basic structure’ of the constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way, may be changed within the constraints of the broader principle. The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity.” K.G. Balakrishnan, C.J. in Ashoka Kumar Thakur v. union of India, (2008) 6 SCC 1, para 118

Having at hindsight, the aforesaid observation of the Hon’ble Supreme Court, we need to have a relook at this constitutional provision engrafted in chapter 3 of Constitution of India to ensure equality of opportunity in the matters of public employment.

‘Public Employment’ is an expression that connects nature and scope of employment under reference with the overarching personality of the State, even if such connect is not deep and is limited only to some noticeable facet or extent. ‘State’ as defined in Article 12 of the Constitution of India, includes its instrumentalities.

While Article 16(1) is a mandate to the State to ensure equality of opportunity for all citizens in the matters relating to the employment or appointment, Clause (2) of the Article prohibits any discrimination against the citizens on the grounds specifically enumerated in the said Article.

It would be relevant to understand the content, context and scope of the said terms;

Religion-  Before the nineteenth century, the term “religion” was rarely used. For medieval authors, such as Aquinas, the term religio meant piety or worship, and was denied of “religious” systems outside of what he considered orthodoxy (Harrison 2015). The term “religion” obtained its considerably broader current meaning through the works of early anthropologists, such as, E.B. Tylor (1871), who systematically used the term for religions across the world. Natural philosophers, such as Isaac Newton, Johannes Kepler, Robert Hooke, and Robert Boyle, sometimes appealed to supernatural agents in their natural philosophy (which we now call “science”). Still, overall there was a tendency to favor naturalistic explanations in natural philosophy. This preference for naturalistic causes may have been encouraged by past successes of naturalistic explanations, leading authors such as Paul Draper (2005) to argue that the success of methodological naturalism could be evidence for ontological naturalism. Some studies suggest that religion draws more upon an intuitive style of thinking, distinct from the analytic reasoning style that characterizes science (Gervais and Norenzayan 2012). On the other hand, the acceptance of theological and scientific views both rely on a trust in testimony, and cognitive scientists have found similarities between the way children and adults understand testimony to invisible entities in religious and scientific domains (Harris et al. 2006). Moreover, theologians such as, the Church Fathers and Scholastics were deeply analytic in their writings, indicating that the association between intuitive and religious thinking might be a recent Western bias.

Regardless of the philosophical or metaphysical debates on aspects of religion, the Constitution of India uses the term religion in Article 25 in a pragmatic manner which even implicitly recognizes that religion may not necessarily be theistic (thus even pagan and heathens form amorphous religious identities). In A.S. Narayana v State of Andhara Pradesh AIR 1996 SC 1765(para 89), Hon’ble Supreme Court acknowledged that it is difficult to define the expression of religion and religious practices or beliefs. Thus, polytheism, henotheism, monotheism, monism, advaitism and multiple other religious classifications have been recognized by the Courts in the course of their adjudicatory function.

The complex and paradoxical concept of equality was retrieved even from the mystic world of religious texts in a case popularly known as Sabrimala temple case (Indian Young Lawyers Association vs. State of Kerela 2019 11 SCC 1).

In The Commissioner Hindu religious Endowments Madras v Sri Lakshmindera Thirtha swamiar Of Shri Shirur math AIR 1954 SC 282 , it was held that “religion is certainly faith of the individuals and communities and it is necessarily not theistic. A religion has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to spiritual well being, it would not be correct to say that religion is nothing else but a doctrine or belief”.

In Most Rev.PMA Metropolitan v Moran Mar Marthoma,AIR 1995 SC 2001, it was held : “ religion is the belief which binds spiritual nature of men to a supernatural being .”It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is civil in nature and includes right to practice it, preach it, and profess it.

 

Race– Grouping of humans based on shared physical and social qualities into categories generally viewed as distinct and different from other classifications by the society is a determinant of racial identity. A race has got common phenotypical traits which are described in well documented phylogenetic trees describing folk taxonomies. The expression ‘race’ was also described as ancestrally differentiated populations which were also described as clades. Philosopher Robin Anderson used cladistics as a tool to categorize human races biologically. Race is a social construct. Max Weber describes such sociological stratification as intra-generational differentiation. Bordieu, another sociologist, explained the race by using a metaphor of social spheres. As per the said metaphor, social positions of the individuals and social lifestyles were dotted and correlated to understand the cultural and social characteristics of particular races as well as the mutual distinctions between any two races. Constitution of India does not recognize any race for a favour or disfavour.

Caste- Caste is a closed, often walled, social stratification system in which people inherit their social position/ status within a society.

In colonial Spain, the expression to define such socially stratified groups was castas. The term caste was defined to the Indian Society in 17th Century by the Portuguese. The Dutch ethnographic studies also refer to the social stratification as caste. In Latin America, caste signifies race, ethnicity as well as economic status.

In India, Caste system consisted of four categories known as Varnas. The said Varnas were Brahmins (Priests), Kshatriyas (Warriors), Vaishyas (Commerce) and Shudras (Workmen). Some people found themselves as ‘left-outs’ in the said classification of four Varnas and they came to be socially treated as outcastes or untouchables. The said classification of four Varnas has its genesis in a documented form in 200 B.C. The said document is known as Manusmriti. Caste system also gives rise to practice of endogamy which has metamorphosed over the period of time, within some echelons of Varnas, while excluding the disadvantaged castes. The Constitution of India addresses the entire issue relating to all identified classes for the purpose of special provisions in their favour and for their advancement. Article 330-342 and Article 366(24) read with Schedule V, VI of the Constitution of India elucidate the castes and tribes recognised for special favours to secures their upliftment.

Article 341 and Article 342 authorize President of India a notified order in respect of each state specifying the castes races and tribes which are to be regarded as scheduled caste and mutatis mutandis scheduled tribe. The President has issued Constitution (Scheduled Castes) Order 1950 and Constitution(Scheduled Castes) Union Territories Order 1951. Clause 2 of 1950 order provides for castes, races and tribes which are deemed to be scheduled castes in the states mentioned in part 1 to part 30 of the said order. Para 3 of the said order states that ‘notwithstanding anything contained in para 2 no person professing a religion other than Hindu or Sikh shall be deemed to be a member of scheduled caste’.

In B C swain v W & T department ( AIR 1974 Ori 115) it was held that although harijans do not fall within scheduled castes and scheduled tribes, the court can take judicial notice of the fact that they were socially and educationally backward.

Sex- It is in this context of identity perspective the expression ‘sex’ not only gender recognition but also signifies all relevant sexual orientations.

In this regard it is relevant to refer to two recent cases:

In National legal Services Authority v Union of India,(2014) 5 SCC 438, the issue of binary of gender based on Corbett principle of biological test was discarded in favour of psychological test of self identification in favour of transgenders, eunuchs and hijras. Various guidelines were issued by Hon’ble Court to ensure that gender equality is practically ensured to the third gender for all intents and purposes.

Dealing with another aspect of sexual orientation, in Navtej Singh Johar v Union of India (2018) 10  SCC 1. As per the judicial exposition of the right to equality laid down in the said case, the pith and substance of Section 377 of the Indian Penal Code stood deeply probed in the light of legitimate sexual orientations of humans and by well reasoned conclusions the said provision in Indian penal code stands decriminalized. The judges, in unanimity, found the said section 377 IPC to be an embodiment of cultural bias, without any valid and scientifically supported rationale and hence ‘manifestly arbitrary’. It was emphatically ruled that sexual orientation cannot be shrunken into a canonical or puritanical rhythm of life. Thus now legalized rights of non-canonical consensual sexual activities between the consenting parties are pulled out of taint of criminality or illegality. The so decriminalized activities need to be kept off from public life and to remain cleared of the patina of obscenity, if any citizen intends to resort to the same as a legally valid right. With such reasonable restrictions, the entire spectrum of non canonical sexual orientation of human life stands legally sanctified, within the celebrated ideals of equality.

Place of birth- Place of birth of any Indian, whether in a hostile country like Pakistan or any other part of the world cannot be a ground for discrimination if such person claims constitutional rights out of any discriminatory action of the State. Domicile of birth and place of birth are not synonymous. The prohibition in Article 15 is restricted to discrimination based on place of birth and cannot be extended to discrimination based on domicile (D.P Joshi vs. State of Madhya Bharat, AIR 1955 SC 334)

Socially and educationally backward classes– parameters which are taken into consideration by a state for defining such classes in the state

Class defined- Santram v Labh Singh AIR 1985 SC 314 para 4

Descent – It primarily signifies hereditary status. Thus Hereditary officers Act became void. In  Gazula Dashratha Rama Rao v AP ( 1961 AIR SC 572) the hereditary mode of selection process to the post of village munsiff under Madras hereditary Village Officers Act 1895 was held void, while holding that the said post is an office under the State.

Clause (3) to Clause (5) contain a principle of affirmative obligation to bind the State to frame appropriate law, provision or policy for extending in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, any such advantage as maybe relevant for securing justice in favour of the enumerated classes of persons.

Employment and appointment are synonymously used expressions and refer to all horizontal or vertical aspects of employment, including promotion.

Thus this Article 16 embodies principle of non-discrimination juxtaposed with principle of an affirmative State action as a constitutional obligation for ensuring that ‘unequals’ in the society are brought at a level where they can compete with others (Union of India v. Pushpa Rani, (2008) 9 SCC 242, para 39).

Article 16 permits, inter alia, the following classifications, subject to the test of reasonableness:

  1. Direct recruits and promotees (Mervyn Coutinda v. Collector of Customs AIR 1967 SC 52)
  2. Between special recruits and promotees (Saxena Anand Prakash v. Union of India AIR 1968 SC 754, State of Mysore v Narsimha Rao AIR 1968 SC 349, Rajindran CA v UOI AIR 1968 SC 507)
  3. Higher and Inferior classes or grades in the same service, Employees of Railway and Employees of Central secretariat. (Rajindran CA v UOI AIR 1968 SC 507)

In a famous case, Mandal Commission Case (Indra Sawhney v. UOI, AIR 1993 SC 477), Hon’ble Supreme Court, after examining multiple aspects of classifications permissible within the scope of Article 15 and Article 16, inter alia observed:

  1. Article 16(4) refers to the word ‘provision’ as distinguished from the word law used in clauses 3 and 5 of Article 16 employ the expression ‘law’.A reading of the said clause 16(4) clearly discloses that it does not contemplate the intended reservation only through a legislative act but by executive orders as well.
  2. For backward classes reservation has to be made only under 16(4), since these classes have been taken out of the classes mentioned in Article 16 (1).
  3. Reservations can take various forms including, preferences, concessions, exemptions, relaxations, extra facilities etc.
  4. Word ‘class’ is used in the sense of a social class. Caste is not antithetical to class.
  5. In identification of backward class, ‘caste’ per se is not the main determinant. Thus backward class does not necessarily mean backward caste.
  6. A ‘means test’ need to be adopted to exclude the creamy layer from the reservation benefits with an object of optimal percolation of reservation benefits across the identified backward classes.(para 86)
  7. Clause (4) of Article 16 is not in the nature of an exception to Clause (1) of that Article, as held in some cases. But an instance of classification permitted under Articles 16(1) and (2) and the concession in favour of backward classes have to be reconciled in such a manner that it does not unreasonably encroach upon the field of equality. (Post Graduate Institute of Medical Education and research, Chandigarh v faculty Association, (1998) 4 SCC 1 (para 32): AIR 1998 SC 1767)
  8. Like Article 14, Article 16(4) permits of reasonable classification (Indra Sawnhey v UOI, AIR 1993 SC 477( para 57)
  9. Clause (4) of Article 16 is an instance, and elaboration of, the principle of classification which is inherent in Clause (1) (Indra Sawhney v UOI, AIR 1993 SCC 477 (para 57 and 396)
  10. Clause (4) is exhaustive of the concept of reservation in favour of backward classes. It does not follow however that Clause (1) does not follow however that Clause (1) does not permit of any reservation for any class other than backward, e.g. persons with disability . (Rajeev Kumar Gupta v UOI (2016) 13 SCC 153). But in the latter case the reservation will be valid only if it satisfies the test of reasonable classification and the State shall have to satisfy that such a provision was necessary in the public interest to redress an exceptional situation (Indra Sawhney v UOI, AIR 1993 SC 477 (paras 59 and 399): 1992 Supp. (3) SCC 217-9-Judges
  11. Thus, as regards the conditions of service relating to employment such a salary, increment, gratuity, pension and age of superannuation, there can be no exception even in regard to the backward classes of citizens. The only matter which clause (4) covers is a provision for the reservation of appointments in favour of a backward class of citizens. (Indra Sawhney v UOI, AIR 1993 SC 477 (paras 57, 58, 94A, 292, 396, 399-400): 1992 supp. (3) SC 217- 9 Judge Bench).

Clause (4) of Article 16 permits reservation for the backward classes of citizens who are not, in the opinion of the State, adequately represented in the services of the State. It does not permit reservation for any person who does not belong to backward classes nor does it enable the State to reserve posts on communal lines ( Venkataramana B v. state of Madras AIR 1951 SC 229)

 Excerpts from the said judgement of nine judges bench ( 3 judges dissenting ) in Indra Sawhney v Union of India, being majority view, to elucidate the reach and scope of Article 16 and are being reproduced hereunder for reference;

Para 82. The above material makes it amply clear that a caste is nothing but a social class – a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return – they do, barring a few exceptions they go into the same fold again. It doesn’t matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class – the caste – that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community. As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind though not exclusively – while enacting Article 16(4). Urbanisation has to some extent broken this caste- occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do the same job – may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an over-whelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity – it is simply not done. There, one is supposed to follow his caste occupation, ordained for him by his birth. There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. ‘Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centers, there may be some dilution. But since rural India and rural population is still the overwhelmingly predominant fact of life in india, the reality remains. All the decisions since Balaji speak of this ‘caste-occupation-poverty’ nexus. The language and emphasis may very but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should not be. It must be eradicated. That is the ideal – the goal. But any programme towards betterment of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand – Ostrich-like – wouldn’t help. One cannot fight his enemy without recognizing him. The U.S.Supreme Court has said repeatedly, if race be the basis of discrimination – past and present – race must also form the basis of redressal programmes though in our constitutional scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socio-economic system is the answer. That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasised in Article 16(4) – equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.

Para 83. Now, we may turn to the identification of “backward class of citizens”. How do you go about it? Where do you begin? Is the method to very from State to State, region to region and from rural to urban? What do you do in the case of religions where caste system is not prevailing? What about other classes, groups and communities which do not wear the label of caste? Are the people living adjacent to cease-fire line (in Jammu and Kashmir) or hilly or inaccessible regions to be surveyed and identified as backward classes for the purpose of Article 16(4)? And so on and so forth are the many questions asked of us. We shall answer them. But our answers will necessarily deal with generalities of the situation and not with problems or issues of a peripheral nature which are peculiar to a particular State, district or region. Each and every situation cannot be visualised and answered. That must be left to the appropriate authorities appointed to identify. We can lay down only general guidelines.

 

At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes – for it cannot be denied that Scheduled Castes include quite a few castes.

Coming back to the question of identification, the fact remains that one has to begin somewhere – with some group, class or section. There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness. What is unconstitutional with it, more so when caste, occupation, poverty and social backwardness are so closely inter-twined in our society? [Individual survey is out of question, since Article 16(4) speaks of class protection and not individual protection]. This does not mean that one can wind up the process of identification with the castes. Besides castes (whether found among Hindus or others) there may be other communities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular State, Muslim community as a whole may be found socially backward. (As a matter of fact, they are so treated in the State of Karnataka as well as in the State of Kerala by their respective State Governments). Similarly, certain sections and denominations among Christians in Kerala who were included among backward communities notified in the former princely State of Travancore as far back as in 1935 may also be surveyed and soon and so forth. Any authority entrusted with the task of identifying backward classes may well start with the castes. It can take caste ‘A’, apply the criteria of backwardness evolved by it to that caste and determine whether it qualifies as a backward class or not. If it does qualify, what emerges is a backward class, for the purposes of Clause (4) of Article 16. The concept of ‘caste’ in this behalf is not confined to castes among Hindus. It extends to castes, wherever they obtain as a fact, irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it, the authority may take up for consideration other occupational groups, communities and classes. For example, it may take up the Muslim community (After excluding those sections, castes and groups, if any, who have already been considered) and find out whether it can be characterized as a backward class in that State or region, as the case may be. The approach may differ from State to State since the conditions in each State may differ. Nay, even within a State, conditions may differ from region to region. Similarly, Christians may also be considered. If in a given place, like Kerala, there are several denominations, sections or divisions, each of these groups may separately be considered. In this manner, all the classes among the populace will be covered and that is the central idea. The effort should be to consider all the available groups, sections and classes of society in whichever order one proceeds. Since caste represents an existing, identifiable, social group spread over an overwhelming majority of the country’s population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes. We may say, at this stage, that we broadly commend the approach and methodology adopted by Justice O.Chinnappa Reddy Commission in this respect.

We do not mean to suggest – we may reiterate – that the procedure indicated hereinabove is the only procedure or method/approach to be adopted. Indeed, there is no such thing as a standard or model procedure/approach. It is for the authority (appointed to identify) to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the court has no say in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward.

 

Para 83A. The only basis for saying that caste should be excluded from consideration altogether while identifying the Backward Class of Citizens for the purpose of Article 16(4) is Clause (2) of Article 16. This argument, however, overlooks and ignores the true purport of Clause (2). It prohibits discrimination on any or all of the grounds mentioned therein. The significance of the word “any” cannot be minimised. Reservation is not being made under Clause (4) in favour of a ‘caste’ but a ‘backward class’. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State. In such a situation, the bar of Clause (2) of Article 16 has no application whatsoever. Similarly, the argument based upon secular nature of the Constitution is too vague to be accepted. It has been repeatedly held by the U.S. Supreme Court in School desegregation cases that if race be the basis of discrimination, race can equally form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent. It is sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the State. Born Heathen, by baptism, it becomes a Christian – to use a simile. Baptism here means passing the test of backwardness.

The 77th Amendment of Constitution of India, literally erased the upgraded spectrum of navigational methodology in the context of the equitable social spreads of reservation benefits as fairly scripted by the constitutional Bench.

Justice K.S Hegde in State of Maharashtra v Nasimkhan Ahmad Khan (1970) 2 SCC454 para 9 rightly observed that “if social wrongs are sought to be remedied in the streets then there can be neither peace nor progress. Without progress the attainment of social justice is impossible.”

Today even the dicta of courts, upon being loosely-wrapped in the ‘social wrong dossier’, is sought to be remedied in the ‘streets’. As angels fear to tread such streets, politicians, with all their might, rush in to re-write the scripts of perpetual reinforcement of their vote banks even though these scripts turn out be scripts of perpetual injustice.

Thus this Article 16, read, mis-read and re-read in different political streets and political camps, stands literally reduced into a textual embodiment of hypersensitive and combustible social facts, distanced from the sacred underpinnings of its philosophy. Today Article 16 stands in its Janus-headed manifestation on the political centre-stage, in our disparity-ridden democracy. In the absence of a any credible political leadership amongst the targeted beneficiaries, the de-contextualized  ‘letter and spirit’ of this Article is literally being dragged from court to court, in pursuit of the ‘ideals’ which already stand burnt and buried by toxic concoctions of ‘vote-bank-shaped’ political ideologies.

William Shakespeare, the great bard of Avon, so aptly ponders over the intrinsic duality of opportunity – bright shade and dark shade. His following words resonate even today on the stage of life;

“O, Opportunity, thy guilt is great!

‘tis thou that executest the traitor’s treason;

Thou sets the wolf where the the lamb may get;

Whoever plants the sin, thou point’s the season;

‘tis thou that spurn’st at right;

And in thy shady cell, where none may spy him’

Sits sin, to seize the souls that wander by him.”

 

 

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