Akhil Bharatiya Soshit Karamchari Sangh (Railway) Vs. Union of India & Ors [1980] INSC 221 (14 November 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 298 1981 SCR (2) 185 1981 SCC (1) 246
CITATOR INFO:
E&R 1985 SC1495 (19,75) F 1987 SC 537 (22) RF 1987 SC 990 (16) RF 1988 SC 959 (12) RF 1991 SC1902 (36) R 1991 SC2288 (12) RF 1992 SC 1 (90,125)
ACT:
Constitution of India, 1950-Arts. 16, 46 and 335-Scope of-Reservation of posts under the State in favour of Scheduled Castes and Scheduled Tribes-Carry forward of unfilled posts for three years-validity of-
HEADNOTE:
In so far as the initial recruitment and later promotion to classes II, III and IV are concerned, the Railway Administration provided for reservation of certain percentage of vacancies for candidates belonging to the Scheduled Castes and Scheduled Tribes. Since, despite the special provision the intake of these communities into the Railway Services continued to be negligible further concessions and relaxations were offered from time to time to members belonging to the Scheduled Castes and Scheduled Tribes. Even so, in many cases the vacancies reserved for them remained unfilled. Yet another step taken by the Railway Administration to keep open the reserved vacancies was to adopt a policy of "carry forward" of the unfilled reserved vacancies for at least three years.
In obedience to the policy decision of the Ministry of Home Affairs, the Railway Board issued certain directives designed to protect and promote the interest of members of the Scheduled Castes and Scheduled Tribes in the matter of their employment in the Railway Administration. The policy directive of reserving certain percentage of posts in favour of these communities having not proved effective, the Railway Board altered the rules "with a view to securing increased representation of Scheduled Castes and Scheduled Tribes in the Railway Services" (Annexure D). The Railway Board authorised the recruiting bodies to slur over low places obtained by Scheduled Castes and Scheduled Tribes candidates except where it was found that the minimum standard necessary for the maintenance of efficiency of the administration had not been reached. The appointing authorities were directed to give additional training and coaching to the recruits so that they might come up to the standard of other recruits appointed along with them.
Likewise where direct recruitment, otherwise than by examination, was provided for, the Railway Board directed the selection of Scheduled Castes and Scheduled Tribes candidates fulfilling a lower standard of suitability than from other communities, so long as the candidates had the prescribed minimum educational and technical qualifications and the appointing authorities were satisfied that the lowering of standards would not unduly affect the maintenance of efficiency of administration.
In the case of selection posts the Railway Board decided that promotions from class IV to class III and from class III to class II were of the nature of direct recruitment and the prescribed quota of reservation for Scheduled Castes and Scheduled Tribes should be provided as in direct recruitment. This reservation was confined to 'selection posts'. In regard to filling of "general posts" in class III it was stated that they were in the nature of direct recruitment and the reservation for Scheduled Castes and Scheduled Tribes as applicable to direct recruitment should be applied.
(Annexure F).
In 1969 the Railway Board further revised their policy in regard to the reservation and other concessions to the Scheduled Castes and Scheduled Tribes candidates in posts filled by promotion (Annexure H). The circular stated that in promotion by selection from class III to class II, if a member of the Scheduled Castes and Scheduled Tribes was within the zone of eligibility the employee would be given one grading higher than the grading otherwise assignable to him on the basis of his record of service.
In April, 1970 the percentage of vacancies to be reserved for Scheduled Castes and Scheduled Tribes was raised from 121/2% and 5% to 15% and 71/2% respectively (Annexure I). By the same order the "carry forward" rule was altered from 2 to 3 years.
In 1973 the Railway Board issued a directive stating that the quota of 15% and 71/2% for Scheduled Castes and Scheduled Tribes may be provided promotion to the categories and posts in classes I, II, III and IV filled on the basis of the seniority-cum-suitability provided the element of direct recruitment to those grades does not exceed 50% (Annexure K).
In August, 1974 the Railway Board further directed that if the requisite number of Scheduled Castes and Scheduled Tribes candidates were not available for being placed on the panel in spite of the various relaxations the best among them i.e. those who secure highest marks should be earmarked for being placed on the panel to the extent vacancies had been reserved in their favour. The Scheduled Castes and Scheduled Tribes candidates so earmarked might be promoted ad hoc for a period of six months against the vacancies reserved for them. During the period of six months the administration was asked to give them all facilities for improving their knowledge and for coming up to the requisite standard. The procedure was required to be applied in cases of promotion to the posts filled on the basis of seniority- cum-suitability (Annexure N).
A further modification to the then existing rules was made by Annexure 'O' which stated that "reservations in posts filled by promotion under the existing scheme would be applicable to all grades or services where the element of direct recruitment, if any, does not exceed 66 2/3% as against 50% as at present".
It was contended on behalf of the petitioners that Scheduled Castes cannot be a favoured class in the public services because (i) they are "castes" and cannot claim preference qua castes unless specially saved by Article 16(4) which speaks of "class" and not "castes", (ii) that Article 16(4) could not apply to promotional levels and (iii) efficiency of administration envisaged by Article 335 had been jeopardised by the impugned circulars which fomented frustration among the civil services and produced inefficiency by placing men of lower efficiency and less experience in higher posts.
187 A preliminary objection was raised that since the first petitioner was an unrecognised union, it was not a "person aggrieved" and so its petition was unsustainable.
Dismissing the petitions [Per majority Krishna Iyer and Chinnappa Reddy, JJ, Pathak J. concurring in the result with reservation on certain questions] There is nothing illegal or unconstitutional in the impugned orders.
[Per Krishna Iyer, J] The argument that since the first petitioner was an unrecognized association the petition is not sustainable must be overruled because whether the petitioners belonged to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they approached this Court under Article 32. Our current processual jurisprudence is broad-based and people oriented and envisions access to justice through "class actions", "public interest litigation" and "representative proceedings". The narrow concept of cause of action and person aggrieved and individual litigation is becoming obsolescent in some jurisdictions. [224 G-H] The well settled position in law is that the State may classify, based upon substantial differentia, groups or classes and this process does not necessarily spell violation of Articles 14 to 16. Therefore, in the present case if the Scheduled Castes and Scheduled Tribes stand on a substantially different footing they may be classified group wise and treated separately. [232 B-C] The fundamental right of equality of opportunity has to be read as justifying the categorisation of Scheduled Castes and Scheduled Tribes separately for the purpose of "adequate representation" in the services under the State. The object is constitutionally sanctioned in terms as Article 16(4) and 46 specificate. The classification is just and reasonable.
[233 G-H] Apart from Article 16(1), Article 16(2) expressly forbids discrimination on the ground of caste and here the question arises as to whether the Scheduled Castes and Tribes are castes within the meaning of Article 16(2).
Assuming that there is discrimination, Article 16(2) cannot be invoked unless it is predicated that the Scheduled Castes are "castes". There are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes. They may be something less or something more and the time badge is not the fact that the members belong to a caste but the circumstance that they belong to an indescribably backward human group. [234 A-C] Articles 14 to 16 form a Code by themselves and contain a constitutional fundamental guarantee. The Directive Principles which are fundamental in the governance of the country enjoin upon the State the duty to apply that principle in making laws. Article 46 obligates the State the 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.
Article 46 read with Article 16(4) makes it clear that the exploited lot of the harijan groups in the past shall be extirpated with special care by the State. [210 F; 211 A-C] 188 At the same time reservations under Article 16(4) and promotional strategies under Article 46 should not be used to imperil administrative efficiency in the name of concessions to backward classes. The positive accent of Article 335 is that the claims of these communities to equalisation of representation in services under the State shall be taken into consideration. The negative element of this Article is that measures taken by the State pursuant to the mandate of Articles 16(4), 46 and 335 shall be consistent with and not subversive of the maintenance of efficiency of administration. [211 D-F] Under Article 341, Scheduled Castes become such only if the President specifies any castes, races or tribes or parts or groups within castes, races or tribes for the purpose of the Constitution. It is the socioeconomic backwardness of a social bracket that is decisive and not mere birth in a caste. [212 A] Annexure F relates only to selection posts and has been expressly upheld in Rangachari's case. The quantum of reservation is not excessive; the field of eligibility is not too unreasonable; the operation of the reservation is limited to selection posts and no relaxation of qualifications is written into the circular except that candidates of the Scheduled Castes and Scheduled Tribes communities should be judged in a sympathetic manner.
Moreover administrative efficiency is secure because there is a direction to give such staff additional training and coaching, to bring them up to the standard of others. [239 F- G] There is no vice in giving one grade higher than is otherwise assignable to an employee. based on the record of his service rendering the promotional prospects unreasonable because this concession is confined to only 25% of the total number of vacancies in a particular grade or post filled in a year and there is no rampant vice of every harijan jumping over the heads of others. More importantly, this is only an administrative device of showing a concession or furtherance of prospects of selection. Even as under Articles 15(4) and 16(4) lesser marks are prescribed as sufficient for these communities or extra marks are added to give them an advantage, the regrading is one more method of boosting the chances of selection of these communities. The prescribed minimum qualification and standard of fitness are continued even for Scheduled Castes and Scheduled Tribes under Annexure H. [240 B-D] Annexure I is unexceptionable since all that it does is to readjust the proportion of reservation in conformity with the latest census. [240 E-F] Similarly "carry forward" raised from two years to three years cannot be struck down. There is no prospect, even if the vacancies are carried forward, of sufficient number of Scheduled Castes and Scheduled Tribes candidates turning out to fill them. Moreover, there is a provision that if a sufficient number of candidates from these communities are not found, applicants from the unreserved communities would be given appointment provisionally. After three years these vacancies cease to be reserved. [240 G-A] Even in Devadasan's case, this Court has laid down the proposition that under Article 16(4) reservation of a reasonable percentage of posts for member of the Scheduled Castes and Scheduled Tribes is within the competence of the State. What was struck down was that the reservations should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. By this rule there is no danger of the total vacancies 189 being gobbled up by the harijan/girijan groups virtually obliterating Article 16(1). The problem of giving adequate representation to backward classes under Article 16(4) is a matter for the Government to consider, bearing in mind the need for a reasonable balance between the rival claims. [241 B-F] Subject to the condition that the carry forward rule shall not result in any given year in the selection or appointment of Scheduled Castes and Scheduled Tribes candidates considerably in excess of 50%, the Annexure I is upheld. [242 E] There is nothing unreasonable or wrong in Annexure J.
Once the parameters of reservation are within the framework of the fundamental rights, minute scrutiny of every administrative measure is not permissible. [242 F] Annexure K is beyond reproach. As between selection and non-selection posts the role of merit is functionally more relevant in the former than in the latter. If in selecting top officers, posts could be reserved for Scheduled Castes and Scheduled Tribes with lesser merit it cannot rationally be argued that for the posts of peons, or lower division clerk’s reservation would spell calamity. The part that efficiency plays is far more in the case of higher posts than in the appointments to the lower posts. [243 D] Dilution of efficiency caused by the minimal induction of a small percentage of reserved candidates cannot affect the over-all administrative efficiency significantly.
Moreover, care has been taken to give in-service training and coaching to correct the deficiencies. [244 B-C] [Chinnappa Reddy, J concurring] The preamble to the Constitution of India proclaims the resolution of the people to secure to all its citizens justice, social, economic and political, equality of status and opportunity and to promote fraternity assuring the dignity of the individual. The right to equality before the law and equality of opportunity in the matter of public employment are guaranteed as fundamental rights. The State is enjoined upon by the Directive Principles to promote the welfare of the people, to endeavour to eliminate inequalities in status, facilities and opportunities and special provisions have been made, in particular, for the protection and advancement of the Scheduled Castes and Scheduled Tribes in recognition of their low social and economic status and their failure to avail themselves of any opportunity of self-advancement. In short the constitutional goal is the establishment of a socialist democracy in which justice-economic, social and political is secure and all men are equal and have equal opportunity. Inequality whether of status, facility or opportunity is to end, privilege is to cease and exploitation is to go. The under-privileged, the deprived and the exploited are to be protected and nourished so as to take their place in an egalitarian society. State action is to be towards those ends. It is in this context that Article 16 has to be interpreted when State action is questioned as contravening Article 16. [255 A-F] A Constitution, such as ours, must receive generous interpretation so as to give an its citizens the full measure of justice so proclaimed. While interpreting the Constitution the expositors must concern themselves not so much with words as with the spirit and sense of the Constitution which could be found in the Preamble the Directive Principles and other such provisions. [256 G] 190 At one time it was assumed that because the fundamental rights are enforce able in a court of law while Directive Principles are not, the former were superior to the latter, that way of thinking has become obsolete. The current thinking is that while Fundamental Rights are primarily aimed at assuring political freedom to the citizens against excessive State action, the Directive Principles are aimed at securing social and economic freedoms by appropriate State action. The Directive Principles are made unenforceable in a limited sense because no Court can compel a Legislature to make laws. But that does not mean that they are less important than Fundamental Rights or that they are not binding on the various organs of the State. They are all the same fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The Directive Principles should serve the Courts as a Code of Interpretation. Every law attacked on the ground of infringement of Fundamental Right should be examined to see if the impugned law does not advance one or other of the Directive Principles or if it is not in the discharge of some of the undoubted obligations of the State towards its citizens flowing out of the Preamble, the Directive Principles and other provisions of the Constitution. [257 A-G] Reservation of posts and all other measures designed to promote the participation of the Scheduled Castes and Scheduled Tribes in public services at all levels are a necessary consequence flowing from the Fundamental Rights guaranteed by Article 16(1). This very idea is emphasized further by Article 16(4) which is not in the nature of an exception to Article 16(1) but a facet of that Article. In the State of Kerala v. N.M. Thomas the court has repudiated the theory propounded in earlier cases that Article 16(4) is in the nature of an exception to Article 16(1). It is no longer correct to say that laws aimed at achieving equality as permissible exceptions. Such laws are necessary incidents of equality. [258 D-F] Minister of Home Affairs v. Fisher [1979]3 All E.R. 21, State of Kerala & Anr. v. N.M. Thomas & Ors. [1976] 1 S.C.R.
906 @ 930-933 and The General Manager, Southern Railway v.Rangachari [1962]2 S.C.R. 586 referred to.
The figures quoted from the report of the Commissioner of Scheduled Castes and Scheduled Tribes for the year 1977- 78 reveal how slow and insignificant the progress achieved by the members of these communities in the matter of participation in the Railway Administration had been. Far from acquiring any monopolistic or excessive representation over any category of posts these communities are nowhere near being adequately represented. Neither the reservation rule nor the "carry forward" rule for these years has resulted in any such disastrous consequence. Therefore, the complaint of the petitioners that the circulars had resulted in excessive representation of these communities is without foundation generally or with reference to any particular year. [246 D-G] There is no substance in the argument that efficiency of administration would suffer if the Railway Board's directives were followed in the matter of reservations and promotions. The Railway Board had stated that minimum standards were insisted upon for every appointment and in the case of candidates wanting in requisite standards of efficiency those with higher marks were given special intensive training to enable them to come up to the requisite standards. In the case of posts which involved safety of movement of trains there was no 191 relaxation of standards in favour of candidates belonging to Scheduled Castes and Scheduled Tribes and they were required to pass the same rigid tests as others.[265 A-B] There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of 50% about which there is no rigidity. Every case must be decided on its own facts. [265 E] There is nothing illegal or unconstitutional in any one of the impugned orders and circulars. [265 G] [Pathak J concurring in the result with reservation on certain questions.] Article 46 of the Constitution enjoins upon the State to treat with special care the educational and economic interest of the weaker sections of the people and in particular the Scheduled Castes and Scheduled Tribes. One of the modes in which the economic interest of these communities can be promoted is by reservation of appointments or posts in their favour in services under the State where they are not adequately represented. By virtue of Article 16(4), when the State intends to make reservation of appointments or posts in favour of these communities in services under it nothing in Article 16 prevents it from doing so. Article 335 provides that claims of the members of these communities shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or a State. But such consideration must be consistent with the maintenance of efficiency of administration which is regarded as paramount.
It is dictated by the common good and not of a mere section of the people. Therefore, whatever is done in considering the claims of Scheduled Castes and Scheduled Tribes must be consistent with the need for maintenance of efficiency of administration. This Article contains a single principle, namely, the advancement of Scheduled Castes and Scheduled Tribes but through modes and avenues which must not detract from the maintenance of an efficient administration. [250 B- H] For securing an efficient administration the governing criterion in the matter of appointments to posts under the State is excellence and the emphasis is solely on quality.
The selection is made regardless of religion, race, caste, sex, descent, place of birth or residence. However, a quota of the posts may be reserved in favour of backward citizens.
But the interests of efficient administration require that at least half the total number of posts be kept open to attract the best of the nation's talent. If it was otherwise an excess of the reserved quota would convert the State service into a collective membership predominantly of backward classes. The maintenance of efficiency of administration is bound to be adversely affected if general candidates of high merit are correspondingly excluded from recruitment. Viewed in that light the maximum of 50% for reserved quota appears fair and reasonable, just and equitable violation of which would contravene Article 335.
[251 B-D] M. R Balaji v. State of Mysore [1963] Supp. 1 S.C.R.
439, 470, T. Devadasan v. Union of India [1964]4 S.C.R. 680 and State of Kerala v. N. M. Thomas [1976]1 S.C.R. 906 referred to.
ORIGINAL JURISDICTION: Writ Petition Nos. 1041-1044 of 1980.
(Under Article 32 of the Constitution) Shanti Bhushan, K. K. Venugopal, A. T. M. Sampath, P. N Ramalingam and R. Satish for the Petitioner.
Lal Narain Sinha, Att. General of India, M. K.Banerjee, Addl. Sol. Genl. and Miss A. Subhashini for Respondents Nos. 1-5.
P. R. Mridul, P. H. Parekh, C. B. Singh, B. L. Verma, Rajan Karanjawal and Miss Vineeta Caprihan for the Intervener.
K. B. Rohtagi and Praveen Jain for the Intervener.
R. K. Garg and P. K. Jain for the Intervener.
S. K. Bagga for the Intervener.
Altaf Ahmed for the Intervener.
S. Balakrishnan for the Intervener.
P. H. Parekh for Respondent No. 6 in W.P. No. 1042/79.
The following judgments were delivered:
KRISHNA IYER. J.
The Root Thought The abolition of slavery has gone on for a long time.
Rome abolished slavery, America abolished it, and we did, but only the words were abolished not the thing.
This agonising gap between hortative hopes and human dupes vis a vis that serf-like sector of Indian society, strangely described as Scheduled Castes and Scheduled Tribes (SCs and STs, for short), and the administrative exercises to bridge this big hiatus by processes like reservations and other concessions in the field of public employment is the broad issue that demands constitutional examination in the Indian setting of competitive equality before the law and tearful inequality in life. A fasciculus of directions of the Railway Board has been attacked as ultra vires and the court has to pronounce on it, not philosophically but pragmatically. "The philosophers have only interpreted the world in various ways; the point is to change it" -this was the founding fathers' fighting faith and serves as perspective-setter for the judicial censor.
193 The Backdrop The social backdrop to the forensic problem raised in this litigation is best projected by lines of poetry quoted in Nehru's Autobiography:
Bowed by the weight of centuries he leans upon his hoe and gazes on the ground, the emptiness of ages on his face, And on his back the burden of the world.
The Problem The dynamics and dialectics of social justice vis a vis the special provisions of the Constitution calculated to accelerate the prospects of employment of the harijans and the girijans in the civil services with particular emphasis on promotions of these categories in the Indian Railways that, in all these cases, is the cynosure of judicial scrutiny, from the angle of constitutionality in the context of the guarantee of caste-free equality to every person.
Petitioners' Challenge The gravamen of the constitutional accusation levelled in this bunch of quasi-class actions under Art. 32 of the Constitution and argued by a battery of counsel led by Shri Shanti Bhushan, with heat and light, passion and reason, is the heartless discrimination shown against vast numbers of members employed by the Railway Administration through its policy directives, by bestowal of unconscionably 'pampering' concessions, at promotion levels, on these social brackets belonging to the historically suppressed SCs & STs, heedless of over-all administrative efficiency in the Indian Railways and frustrating the promotional hopes of the larger human segments of economically downtrodden senior members. The fall-out of this 'benign discrimination' of helping out the weakest sections has been to blow up, out of all proportion to the social realities, the 'backwardness' syndrome so as embrace many politically powerful castes disguised as Backward Classes. This constitutional amulet, rooted largely in caste, the petitioners lament, has been misused and applied in educational and employment fields on an escalating scale. The perverted result is that a caste-riven nation is a spectre that haunts the land, pushing back the patriotic prospect of a homogenised Indian Society of casteless equality and projecting instead the divisive alternative of a heterogeneous caste map of Bharat. The fundamental failure of this sterile scheme of reservation- wise circumvention of the fundamental right to equality, ideologically and pragmatically speaking, has deepened the pathological condition of communalism besetting the Indian polity 194 and split the have-nots into snarling camps-a consummation disastrously contrary to the constitutional design of abolition of socioeconomic inequality through activist stratagem of equalisation geared to actual attainment of integrated equality.
Logically, the argument leads to the formulation that each caste and community is bargaining politically for bigger bites of the educational-and-employment cake so much so merit becomes irrelevant or takes a back seat and 'backward' birth brings a boon. The constitutional stultification of an integrated India through misuse of 'reservation' power provided for in Arts. 15 and 16 meant for the direct 'dalits' the pollution, by the political Executive, of our founding creed of an egalitarian order by playing casteification politics and the morbid dilution of 'backwardness' marring the dream of a secular republic by the nightmare of a feudal vivisection of the people-if this picture drawn by some counsel be true, even in part, the basic task of transforming the economic order through social justice will be baulked through destructive communal disputes among the masses. Maybe, this may weaken the social revolution, leave an indelible stain and incurable wound on the body politic and justify the censure by history of the engineers of our political power and electoral processes.
Hearing the arguments of the petitioners one wonders, "Is caste the largest political party ?" Has protective discrimination, so necessary in an insufferably unequal society, created a Frankenstein's monster ? Have we no dynamic measures to drown social, economic and educational backwardness of whole masses except the traditional self-perpetuating quasi-apartheidisation called 'reservation' ? Surely, our democratic, secular socialist republic is no wane moon but a creative power rooted in equal manhood, an egalitarian reservoir of vast human potential, a demographic distribution of talent benumbed by brahman centuries of social injustice but now seeking human expression under a new dispensation where 'chill penury' shall no longer 'repress their noble rage'.
Caste, undoubtedly, in a deep-seated pathology to eradicate which the Constitution took care to forbid discrimination based on caste, especially in the field of education and services under the State. The rulings of this court, interpreting the relevant Articles, have hammered home the point that it is not constitutional to base identification of backward classes on caste alone qua caste.
If a large number of castes masquerade as backward classes and perpetuate that division in educational campuses and public offices, the whole process of a caste-free society will be reversed. We are not directly concerned with backward classes as such, but with the provisions ameliorative of the 195 Scheduled Castes and the Scheduled Tribes. Nevertheless, we have to consider seriously the social consequences of our interpretation of Art. 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over-indulgent concessions, even at promotional levels, to the Scheduled Castes and the Scheduled Tribes, which are only a species of castes. "Each according to his ability" is being substituted by "each according to his caste", argue the writ petitioners and underscore the unrighteous march of the officials belonging to the SCs & STs over the humiliated heads of their senior and more meritorious brothers in service. The after-math of the caste-based operation of promotional preferences is stated to be deterioration in the over-all efficiency and frustration in the ranks of members not fortunate enough to be born SCs & STs. Indeed, the 'inefficiency' bogie was so luridly presented that even the railway accidents and other operational calamities and managerial failures were attributed to the only villain of the piece viz., the policy of reservation in promotions. A constitutionally progressive policy of advantage in educational and official career based upon economic rather than social backwardness was commended before us by counsel as more in keeping with the anti-caste, pro-egalitarian tryst with our constitutional destiny. And, Shri Shanti Bhushan, at one stage, helped the court realise the consequences of its verdict if it upheld the pampering package of promotional preferences by warning us of running battles in the streets, a sort of caste-war, against birth based 'privileges' for the harijan-girijan millions.
Our Approach Of course, judicial independence has one dimension, not fully realised by some friends of freedom. Threats of mob hysteria shall not deflect the court from its true accountability to the Constitution, its spirit and text belighted by all the sanctioned materials The other invisible sacrifice of judicial independence relevant to this case is the unwitting surrender to "the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us (judges) a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties." We quote what the great Justice Cardozo has courageously confessed:
I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and 196 influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man whether he be litigant or judge...... The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by........... We shall never be able to flatter ourselves, in any system of judicial interpretation, that we have eliminated altogether the personal measures of the interpreter. In the moral sciences, there is no method or procedure which entirely supplants that subjective reason. We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without. None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read.
The British echo of this judicial weakness is heard in Prof.
Griffith's words:
These judges have by their education and training and the pursuit of their profession as barristers, acquired a strikingly homogeneous collection of attitudes, beliefs and principles, which to them represents the public interest.
The emphasis on the subtle invasions from within upon functional autonomy and forensic objectivity mentioned by Cardozo will be evident when we turn to the pathetic saga of the depressed classes, even today, painted by the other side. The learned Attorney General, less militant but not less firm in his submissions, called all this a caricature of the poignant facts of life and called upon us to assess the facts with cold objectivity and warm humanity casting aside possible sympathies suggested by Justice Cardozo and Prof. Griffith.
We, as judges dealing with a socially charged issue of constitutional law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses including the harijan-girijan millions hungering for a humane deal after feudal colonial history's long night.
Granville Austin quotes profusely from the Constituent Assembly proceedings to prove the goal of the Indian Constitution to be 197 social revolution. Radhakrishnan, representing the broad consensus, said that India must have a 'socioeconomic revolution' designed not only to bring about the real satisfaction of the fundamental needs of the common man, but to go much deeper and bring about 'a fundamental change in the structure of Indian society'.
The Cultural Core of the Constitutional Protection:
Let us get some glimpses of history to get a hang of the problem. 'In thy book record their groans' may be the right quote to begin with. We cannot blink at the agony of the depressed classes over the centuries condemned by all social reformers as rank irreligion and social injustice.
Swami Vivekananda, for instance, stung by glaring social injustice, argued(2):
The same power is in every man, to the one manifesting more, the other less. Where is the claim to privilege. All knowledge is in every soul, even in the most ignorant, he has not manifested it, but, perhaps he has not had the opportunity the environments were not, perhaps, suitable to him. When he gets the opportunity he will manifest it. The idea that one man is born superior to another has no meaning in Vedanta;
that between two nations one is superior and the other inferior has no meaning whatsoever........
Men will be born differentiated; some will have more power than others. We cannot stop that.... but that on account of this power to acquire wealth they should tyrannies and ride roughshod over those, who cannot acquire so much wealth, is not a part of the law, and the fight has been against that. The enjoyment of advantage over another is privilege, and throughout ages the aim of morality has been its destruction.............
Our aristocratic ancestors went on treading the common masses of our country under foot till they became helpless, till under this torment the poor, poor, people nearly forgot that they were human beings.
They have been compelled to be merely hewers of wood and drawers of water for centuries, so much so, that they are made to believe that they are born 198 as slaves, born as hewers of wood and drawers of water.
With all our boasted education of modern times, if anybody says a kind word for them, I often find our men shrink at once from the duty of lifting them up, these poor downtrodden people. Not only so, but I also find that all sorts of most demoniacal and brutal arguments, culled from the crude ideas of hereditary transmission, and other such gibberish from the western world are brought forward in order to brutalise and tyrannies over the poor, all the more......
Aye, Brahmins, if the Brahmin has more aptitude for learning on the ground of heredity than the Pariah, spend no more money on the Brahmin's education, but spend all on the Pariah. Give to the weak, for there all the gift is needed. Our poor people, these down- trodden masses of India, therefore, require to hear and to know what they really are. Aye, let every man and woman and child, without respect of caste or birth, weakness and strength, hear and learn that behind the strong and the weak, behind the high and the low, behind everyone, there is that Infinite Soul, assuring that infinite possibility and the infinite capacity of all to become great and good. Let us proclaim to every soul-'Arise, awake and stop not till the goal is reached. Arise, awake ! Awake from the hyprotism of weakness. None is really weak; the soul is infinite, omnipotent and omniscient. Stand up, assert yourself, proclaim the God within you, do not deny Him ! Too much of inactivity, too much of weakness, too much of hypnotism has been and is upon our race........ Power will come, glory will come, goodness will come, purity will come, and everything that is excellent will come, when this sleeping soul is roused to self-conscious activity..........
Our proletariat are doing their duty........ is there no heroism in it ? Many turn out to be heroes, when they have some great task to perform. Even a coward easily gives up his life, and the most selfish man behaves disinterestedly when there is a multitude, to cheer them on but blessed indeed is he who manifests the same unselfishness and devotion to duty in the smallest of acts. unnoticed by all-and it is you who are actually doing this, ye ever-trampled labouring classes of India ! I bow to you.
There was the Everest presence of Mahatma Gandhi, the Father of the Nation, who staked his life for the harijan cause.
There was Baba 199 Saheb Ambedkar-a mahar by birth and fighter to his last breath against the himalayan injustice to the harijan fellow millions stigmatised by their genetic handicap-who was the Chairman of the drafting committee of the Constituent Assembly. There was Nehru, one of the foremost architects of Free India, who stood four square between caste suppression by the upper castes and the socialist egalitarianism implicit in secular democracy.
These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward, particularly that pathetic segment described colourlessly as Scheduled Castes and Scheduled Tribes. To recognise these poignant realities of social history and so to interpret the Constitution as to fulfil itself, not eruditely to undermine its substance through the tyranny of literality, is the task of judicial patriotism so relevant in Third World conditions to make liberation a living fact.
The learned Attorney General drew our attention to the yawning gap between the legitimate expectations of the socially depressed SC & ST and their utter under representation in the Public Services except in such mean jobs as of scavengers and sweepers where no other caste was forthcoming. Equality of opportunity would be absent so long as equalisation strategy was not put into action, and the State, stage by stage and with great care and experimental eye, took steps to secure the ends of Arts. 16(1) and 16(4), read in the light of the Preambular promise of equality, fraternity and dignity, the Part IV directive of promotion of educational and economic interests of the SC & ST and the Special Chapter, especially Art. 336, devoted to better representation of the SC & ST in the services and posts in connection with the affairs of the Union and States. We could not apprehend the social dimension of the stark squalour of SC&ST by viewing Art. 16 (4) through a narrow legal aperture but only by an apercu of the broader demands of social democracy, without which the Republic would cease to be a reality to one-fifth of Indian humanity.
The final address to the Constituent Assembly by Dr. Ambedkar drives home this point, not to interpret but to illumine the scheme of the equality code and the casteless society plea :
The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well.
Political democracy can- 200 not last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognises liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.
Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principles 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. On the 26th January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic structure, continue to deny the principle of one man one value.
How long shall we continue to live this life of contradictions ? How long shall be continue to deny equality in our social and economic life ? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure or political democracy which this Assembly has so laboriously built up (emphasis added).
Indeed from another angle of vision, Art. 16(4) serves to correct a gross social distortion and denial of human rights to whole groups ostracised by feudal history. A holistic concept of human rights includes among its components socioeconomic rights for, without basic conditions of social justice, survival with human dignity is an impossibility. Thus, a great socioeconomic plan to uplift the harijan-girijan groups is a must for living equality, proclaimed by Arts. 14 to 16, to become an active reality. It must be stated that the petitioners did not contest the need for State action to raise the lot of these backward most social sectors but objected, its widespread 201 erosion of the right to basic equality which belongs to the have-nots in the country. Where do we draw the line ? These are the disturbing issues going to the root of progressive nationalism raised by the writ petitioners and turned against them by the State, but we are not inclined or entitled to venture into the political wisdom of governmental policies vis a vis 'backward' community, calculus save where constitutionality, falling within the judicial jurisdiction, confronts us. We must therefore confine the forensic focus to the specific issue of profound import projected by the aggrieved petitioners whose chief attack is against being passed over, seniority and superior merit notwithstanding, in favour of alleged neophytes or nitwits merely because, by birth, the latter belong to the SC&ST species, trampling underfoot, in the process, the fundamental rights of equal opportunity entrenched in Arts.
14 and 16(1) of the Constitution.
The dimensions of the problem, the human numbers involved and the agitational potential said to be simmering in the civil services were vividly drawn at the bar by one side. The tragic tale of die-hard decades of inequality even after Freedom, the socioeconomic miles to go' and the constitutional 'promises to keep' (over which judges will not legally sleep) before the dalit brethren may break their chains and become at least distant neighbours to the less socially handicapped sector, were highlighted pragmatically, statistically, hierarchically, even desperately, by the proponents of the impugned circulars (Annexures F to O covered by Prayers I to X). These submissions serve as poignant background but the decision on the vires of the Railway Board's directives will depend on constitutional interpretation applied to Indian actualities, not to idealised abstractions or theoretical possibilities. True, the politicisation of casteism its infiltration into unsuspected human territories and the injection of caste- consciousness in schools and colleges via backward class reservation are a canker in the rose of secularism. More positive measures of levelling up by constructive strategies may be the developmental needs. But the judicial process while considering constitutional questions, must keep politics and administrative alternatives as out of bounds except to the extent economics, sociology and other disciplines bear scientifically upon the proposition demanding court pronouncement. Here the sole issue, spread out into the validity of the supposed sinful circulars (Annexures F to O covered by Prayers I to X) is whether Art.16, in its sweep and savings, does permit State action in favour of socially and economically backward classes, especially the constitutionally favoured category called the SC & ST, to the point of liberal concessions slurring over 202 'age', 'merit' and the like, not merely at the initial entrance gate but even at the higher promotional docks.
Whether alternative policies should have been chosen by Government or would have served better to remove the handicaps of the SC & STs, whether the advantages conferred on these classes are too generous and overly compassionate and whether the considerable numbers of the economically destitute receive the same sympathy as social have-nots categorised as SC & ST these and other speculative maybes, are beyond the courts orbit save where Art. 16 is hit by these omissions and commissions. Nor is it the court's province to question the conscionableness or propriety of constitutional provisions which display ultra concern for members of the SC & ST. The court functions under the Constitution, not over it, interprets the Constitution, not amends it, implements its provisions, not dilutes it through personal philosophy projected as constitutional construction. Objective tuned to constitutional wavelengths is our function and if-only if-constitutional guarantees have clearly been violated will the court declare as non est such governmental projects as go beyond the mandates of Part III read in harmony with Part IV. If, on a reasonable construction, the Administration's special provisions under Art. 16(4) exceed constitutional limits, it is the duty of the court to strike dead such project. Even so, while viewing the legal issues we must not forget what is elementary that law cannot go it alone but must function as a member of the sociological ensemble of disciplines.
If one out of a few reasonably tenable constructions of the constitutional provisions vis a vis the impugned executive directives may sustain the latter, the court should and would refrain from using the judicial guillotine.
There is a comity of coordinate constitutional instrumentalities geared to shared constitutional goals which persuades the judicature to sustain rather than slay, save where the breach is brazen, the transgression is plain or the effective co-existence of the fundamental right and the administrative scheme is illusory. This Court has, on former occasions, upheld executive and legislative action hovering "perilously near" but not plunging into unconstitutionality (see In re: Kerala Education Bill (1959 SCR 995 at 1064). It is a constant guideline which we must vigilantly remember, as we have stated earlier, that our Constitution is a dynamic document with destination social revolution. It is not anaemic nor neutral but vigorously purposeful and value-laden as they very descriptive adjectives of our Republic proclaim. Where ancient social injustice freezes the 'genial current of the soul' for whole human segments our Constitution is not non-aligned. Activist equalisation, as a realistic strategy of 203 producing human equality, is not legal anathema for Arts. 14 and 16. To hold otherwise is constitutional obscurantism and legal literalism, allergic to sociologically intelligent interpretation.
The Preamble which promises justice, liberty and equality of status and opportunity within the framework of Secular, Socialist Republic projects a holistic perspective.
Art. 16 which guarantees equal opportunity for all citizens in matters of State Service inherently implies equalisation as a process towards equality but also hastens to harmonize the realistic need to jack up 'depressed' classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes Art. 16(4) for this specific purpose. In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality. Article 16(4) is not a jarring note but auxiliary to fair fulfillment of Art.
16(1). The prescription of Art. 16(1) needs, in the living conditions of India, the concrete sanction of Art. 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung. To bury this truth is to sloganise Art. 16(1) and sacrifice the facts of life.
This is not mere harmonious statutory construction of Art. 16(1) and (4) but insightful perception of our constitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold one's own personality, belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Art. 16(4) promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Art. 16(4) consists in the speed with which result-oriented reservation withers away as, no longer a need, not in the everwidening and everlasting operation of an exception [Art. 16(4)] as if it were a super-fundamental right to continue backward all the time. To lend immortality to the reservation policy is to defeat its raison de'etre; to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of Art. 16(1), to costeify 'reservation' even beyond the dismal groups of backward-most people, euphemistically described as SC & ST, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular State.
204 The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labour, the hungry, hard-working half-slave, whose liberation was integral to our Independence. To interpret the Constitution rightly we must understand the people for whom it is made- the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities. This synthesis of ends and means, of life's maladies and law's remedies is a part of the know-how of constitutional interpretation if alienation from the people were not to afflict the justicing process.
A statute rarely stands alone. Back of Minerva was the brain of Jove, and behind Venus was the spume of the ocean.
These broader observations are necessary to set our sights right, to appreciate that our Constitution lays the gravestone on the old unjust order and the cornerstone of the new humane order. This constitutional consciousness is basic to interpretative wisdom. We may now start with the facts of the case and spell out the particular problems demanding our consideration. Constitutional questions cannot be viewed in vacuo but must be answered in the social milieu which gives it living meaning. After all, the world of facts enlivens the world of words. And logomachy is not law but a fatal, though fascinating, futility if alienated from the facts of life. So, before pronouncing on the legality of the impugned ten orders we must sketch the social setting in which they were issued and the socioeconomic facts which clothe Art. 16(4) with flesh and blood.
'The wisest in council, the ablest in debate and the most agreeable companion in the commerce of human life, is that man who has assimilated to his understanding the greatest number of facts.' The facts The Indian Railways, with an impressive record of expansion, employs colossal numbers of servants in various typically hierarchical classes and grades. While the Indian Railways Act, 1890, substantially regulates many of the functions of the railway administration in India, the Railway Board is constituted under the Indian Railway Board Act, 1905, with a view more effectively to control the administration of railways. The Central Government is statutorily empowered 205 to invest the Railway Board with all or any of the powers and functions of the Central Government under the Indian Railways Act, 1890. Power is also given by s. 2 to vest in the Railway Board the capacity to make general rules for railways administered by the Government. Of course, the investment of powers upon the Railway Board is, broadly speaking, subject to the condition that the Central Government retains the ultimate authority in all matters connected with the Railway Administration. The Ministry of Home Affairs, in the Government of India, deals usually with all matters of personnel, conditions of service of the Central Government staff and the like. Policy decisions regarding matters covered by Art. 16(4) apparently originate from the Ministry of Home Affairs and emanate to the various institutions like the Railway Board which responsively implement them. In the present case, ten directives were issued by the Railway Board on different occasions, which disclosed 'benign discrimination' in favour of Scheduled Castes and Scheduled Tribes and are challenged by the petitioners as 'reverse discrimination', if we may use that expression popularised in American legalese. These directives were designed to protect and promote the interests of members of the SC & ST in the matter of their employment under the Indian Railway Administration and they specially related to the softer criteria for promotion. The Railway Board acted, as is discernible from the relevant orders, in obedience to the policy decisions of the Ministry of Home Affairs. Some argument was addressed on the validity of the Railway Board's orders on procedural and other technical grounds. We see no substance in them. The Board was bound to carry out the Central Government's directives under Art. 16(4) and did it. The broader issue of 'benign discrimination' deserves close study.
The meat of the matter, to put it that way, is the gross discrimination alleged to be implicit in the several Circulars of the Railway Board and the non-applicability of Art. 16(4) to save these circulars. The focus of this litigation must primarily turn on that issue and the court must navigate towards egalitarian justice at the level of promotion posts in the public services, keeping the land- mark rulings of this Court as mariner's compass. The disturbing perpetuation of socioeconomic suppression of a whole fifth of Indian manhood-the dalits-and the righteous resistance to prolonged 'reverse casteism' resulting in deepening demoralization of the economically oppressed-the soshits-have been projected by counsel on the forensic screen as a conflict between equalisation and equality. Our founding fathers, familiar with social dialectics and socialist enlightenment, surely would have intended to bring both these have-not categories together as a 206 broad brotherhood against the die-hard Establishment and would never have contemplated a fratricidal strategy which would blind and divide brothers in distress-the dalits and the soshits-and harm the integration of the nation and its developmental march. Unless by dialectical approach sociologists lay bare this false dilema of dalits versus soshits, the growing distrust in democracy will deepen, the jurisprudence of constitutional revolution and egalitarian justice will fade in the books and the founding hopes of January 26, 1950, will sour into cynical dupes of the masses, decades after! Wider perspectives must, therefore, inform our study of the equality code (Arts. 14 to 16) to rid it of social contradictions and read into it the need for a dalit soshit partnership in demanding social justice.
Felix Frankfurter set the judicial function when he said :(1) A Judge should be compounded of the faculties that are demanded of the historian and the philosopher and the prophet. The last demand upon him-to make some forecast of the consequences of his action-is perhaps the heaviest. To pierce the curtain of the future, to give shape and visage to mysteries still in the womb of time, is the gift of the imagination. It requires poetic sensibilities with which judges are rarely endowed and which their education does not normally develop. These judges must have something of the creative artist in them; they must have antennae registering feeling and judgment beyond logical, let alone quantitative, proof.
Be that as it may, the court must go to the constitutional basics for guidance, decode the articles indifferent to agitational portents and ideological speculations, but responsive to the urgent implementation of Art. 38 into the reality of Indian life. Article 38 reads:
38(1). The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.
(2) The State shall in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
(emphasis added) 207 The learned Attorney General, while emphasising the egalitarian commitment of the Constitution over the whole range of public services throughout their career, defended the impugned orders by law and logic, pragmatics and statistics, and countered the hypotheticals of the petitioners by the actual furnished by official facts and figures. He also relied on a few precedents, in particular, Rangachari's case(1) and Thomas's case(2) both of which bind this Bench. He also sought to explain away the effect of Balaji's case(3) and Devadason's case(4) on which the other side had heavily relied to nullify some of the circulars.
The Union of India placed before us its case that notwithstanding measures for bringing the gap in the matter of gross under-representation in the Administration, no adequate improvement had been registered and, and so, more dynamic State action, to fulfil its constitutional tryst with the frustrated fifth of the people described as SC & ST, became necessitous. The raw reality of meagre harijan and girijan presence in the public services conscientised the Administration into taking a series of cautions steps to catalyse the prospects of these categories entering the many Departments of Government not merely at the initial stage but also at promotional points and in appointments to supervisory posts so as to become members of the higher echelons. The learned Attorney General contended that such affirmative action’s, slurring over fanatical and financial insistence on so-called merit and seniority, was in conformity with Art. 16(1) itself and, in any case, was protected by Art.16(4). Maybe, the human numbers outside the SC & ST honestly suffer some meyhem in their career especially at the higher notches of promotion after long stagnation and are bitter that the shudra or panchama steals a march over him now, although the poignant pages of earlier history have been a negation of personhood then for millions of the dregs of society, desperately driving Dr. Ambedkar to vow "I shall not die a Hindu". But the synthesis of Art. 16, not the antithesis between Art. 16(1) and Art. 16(4), gives the clue to c
