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Article 16(4) – A Judicial analysis

Article 16 of the Constitution of India relates to equality of opportunities in matters of public employment. In simple words what this means is that there shall be an equality of opportunities that would be provided to the people by the State when it comes to Public Employment. The article, in clause 4 goes on to say that the provisions of the article would not in any way prevent the state from making any provision for reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the state have not been adequately represented.

What me must first understand is that the State is not bound to provide reservations to the backward classes of citizens just because of Article 16(4). This has been reiterated and made clear by the Supreme Court in the case of Mohan Kumar Singhania vs Union of India (AIR 1992 SC 1) where the Supreme Court says that Article 16(4) is just an enabling provision conferring a discretionary power on the State for making any provision or reservation for backward classes of citizens.

There are two small things that we need to keep in mind while discussing clause 4 of Article 16. First is that the word State refers to State under Art 12 of the Constitution and secondly that the term “backward class of citizens” as stated in Art 16 will mean the same as “socially and educationally backward classes” as stated in Art 15. This was laid down by the Supreme Court in the case of Janki Prasad Parimoo vs State of Jammu and Kashmir (1973 AIR 930).

Now, considering the pre-1995 era i.e. the time when 4(A) was not a part of the original Article, one question arose. Would reservation here include reservation in promotions also? This was precisely the question before the Supreme Court in the case of General Manager Southern Railway vs Rangachari (1962 AIR 36). The Supreme Court in its un unanimous decision (3:2) said that reservation in terms of promotion could also be made. The justification that the 3-judge majority gave was that the state when providing reservation was obligated to provide a qualitative representation and not just a quantitative representation and hence reservations in terms of promotions can be provided. One more important point that the Supreme Court laid down in this case was that it went on to say that clause 4 of Art 16 is an exception to clause 1 of Art 16. However, it clarified that the exception should not be completely contrary to the original clause. It also said that while providing such reservation, there should not be a compromise with the maintenance of efficiency of administration.

This view was again reiterated by the Supreme Court in the case of T. Devadasan vs Union of India (1964 AIR 179) where the court again said that Clause 4 of Art 16 is an exception to clause 1. The carry forward rule in this particular situation with regards to some posts from previous years, not being occupied and offered in the current year, came to be struck down because of the reason that the cumulative reservation in the current year was crossing the 50 percent limit which was laid down by the Supreme Court in the case of M.R. Balaji vs State of Mysore (1963 AIR 649). The court said that a monopoly should not be created because of the reservations and that the carry forward rule could take place provided that the cumulative reservation should not exceed 50 percent.

The dissenting judgement of Justice Subba Rao in the Devadasan case came to become the majority judgement in the case of State of Kerala vs N.M Thomas (1976 AIR 490). Promotions for a particular post depended upon passing a test in a matter of 2 years. For the SC’s and ST’s, an additional two years was granted to pass the same test. This came to be challenged and this rule was upheld. The Supreme Court said that it is permissible to give a preferential treatment to the SC and ST under Art 16(1) outside of Art 16(4). It also went on to oppose the previous views regarding clause Art 16(4) and said that clause 4 is not an exception to clause 1 and 2 but rather it is a facet of the same. This view that Art 16(4) is a facet and not an exception was also given by the Supreme Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (ABSK Sangh) vs Union of India (1981 AIR 298) The Supreme Court said that the SC’s and ST’s cannot be equated with the socially forward category of people and hence benefits can be provided. A massive 66% reservation in the railway was upheld in this case as the courts found that the representation of the SC’s and ST’s wasn’t adequate enough.

When we talk about Art 16 with special reference to clause 4, we have to discuss in apt detail the case of Indra Sawhney vs Union of India (AIR 1993 SC 477) more famously known as the Mandal Commission case.

The first thing that we must understand is that the State was always faced with two questions, the first of them being as to how to define Backward Classes and secondly as to how to understand whether they have been granted adequate representation or not. To understand this situation, a first commission (by a Presidential Order under Article 340) was set up known as The Kaka Kallelkar Commission on the 29th of January 1953. The main job it was assigned with was to define the term backward classes. It was also tasked to give some recommendations in cases of Public Services for the betterment of the backward classes. The commission ended up listing 2399 castes as Socially and Educationally Backward.

The then Prime Minister of India Shri Morarji Desai sets up another commission on the 1st of January 1979 again by a Presidential Order. This time, the commission is headed by Shri B.P. Mandal who was then a Member of Parliament. It lists out a total of 3743 casts as the socially and educationally backward classes. It further recommends 27% reservation in government posts for these backward classes. Now before this could be implemented, the then Janata government collapsed and lost power and the Congress government headed by Mrs. Indira Gandhi took over.

In 1989, the Janata Government regained power and decided to go ahead and implement the recommendations of the Mandal Commission. The then Prime Minister Mr. V.P Singh through an executive order put 27% reservation in matters of Public Employment. A writ petition challenging this was filed in the Supreme Court and listed for hearing before a 5-judge bench but before this, the Janata Government collapsed and the Congress Government headed by Prime Minister PV Narasimha Rao came to power. The Prime Minister issued a second office memorandum whereby an economic criterion is included within the reservation and a further 10% reservation for the SC’s and ST’s is created.

The State obviously has to justify its actions now and for the same, the Supreme Court sets up a 9-judge bench to hear the matter. The court itself goes ahead and frames the following issues.

The first issue was whether clause 4 of Article 16 is an exception to clause 1 or not. The second issue was what would be the content of the phrase “backward class” for the purpose of Art 16(4) and whether caste by itself could be regarded as a class or not. The second issue also dealt with whether backward class would include weaker sections of the society as enumerated in Article 46 in the Directive Principles of State Policy and finally whether economic criteria by itself would be a part of class in Art 16(4). The third issue was that in the case economic criteria was not a class under clause 4, could it be a ground to provide reservation under clause 1 of Article 16. The fourth issue was that if reservation under clause 1 could be provided then can the cumulative reservation under clause 1 and clause 4 exceed 50% in one year or not. The fifth issue was whether clause 4 of Art 16 permit classification of backward classes into more backward and most backward and if so, then on what ground as in economic or any other ground. The sixth issue was whether the term “any provision” as found in clause 4 of Art 16, necessitate the Centre or the State to make a law or could a simple executive order be passed to serve the same. The final issue which the bench framed was would reservation include promotions or not.

The 9 judge Bench goes ahead and addresses the issues one by one.

For the first issue it says that clause 4 cannot be treated as an exception to clause 1. It further says that reservation for other sections of the society which are not backward can be done by virtue of clause 1 and not clause 4. Hence, we see that the court upholds the findings in N.M Thomas case and ABSK Sangh case. For the second issue the court says that economic criterion in itself cannot be a class unless that economic backwardness is on account of social backwardness. The court further says that Backward Classes would mean the socially backward classes whose educational and economic backwardness is on account of their social backwardness. With regards to the third issue, the court says that no reservation can be made exclusively on economic criterion either under clause 1 or clause 4 of Article 16.

As far as the 4th issue is concerned the court says that in general, the ceiling of 50% when it comes to reservation, should be maintained. However, if the State is faced with a dire situation where the backward classes haven’t been adequately represented then it can go ahead with some more reservation but it has to justify the same. For the 5th issue the court says that classification of the Backward class into more backward and most backward is permissible but this has to be done on the basis of social backwardness and not economic backwardness. What the court is trying to put forward here is that a classification within a classification should not be on the basis of economic backwardness because of the fact that people within this class who are capable of being put on the same pedestal as the socially forward people, such privileged people should not be brought within the ambit of reservation. With regards to the 6th issue the court says that an executive order is sufficient and passing a law is not necessary. With regards to the last issue, the court says that reservation in cases of promotion is unconstitutional. However, it also says that Backward Classes may be provided with certain relaxations, exemptions and concessions.

Now, a natural point of conflict was created by the Supreme court itself because it had now struck down the reservation in cases of promotion rule which was earlier given a go ahead in Rangachari’s case. Hence the court invokes the principle of Prospective Overruling and says that this decision would come into force after 5 years.

The findings of the court in Indra Sawhney’s case was to a great extent detrimental to the vote bank politics of the government. It was obvious that the legislature would come up with a sea of amendments to match the decision given in Indra Sawhney’s case. Subsequently with the 77th Amendment Act of 1995, clause 4(A) which validates reservation in cases of promotion, came to be added. Further, by the 81st Amendment Act of 2000, clause 4(B) which validates the State exceeding 50 percent reservation for the SC’s and ST’s to fill the backlog vacancies of the earlier years came to be added and finally by the 85th Amendment Act of 2001, the words “with consequential seniority” came to be inserted in clause 4(A).

It is very clear that there has always been a tussle between the legislature and the judiciary. The judiciary set down certain points in Indra Sawhney’s case and these were totally opposed by the Government by inserting clause 4(A) and 4(B). All the aforementioned amendments came to be challenged on the grounds that it opposed the spirit of the judgement in Indra Sawhney’s case, in the case of M. Nagaraj vs Union of India. It is finally here that the court upholds the constitutional validity of all the Amendments and we finally reach a conclusion with regards to the interpretation of Article 16.






3rd Year BA LLB


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