Article 16(4) stands on its own. Constitution made no room for ‘merit’ that courts invoke

The phrase 'efficiency of administration', used in the colonial and precolonial eras, was rejected during the framing of the Indian Constitution, and thus cannot be used against the idea of reservations.

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In the past seven decades of constitutional jurisprudence on reservations, the Supreme Court of India has consistently referred to the notions of “efficiency” and “merit,” while adjudicating the validity of various reservation policies. The Court has held in several judgments — Indra Sawhney v Union of India 1993; M Nagaraj v Union of India 2006 — that the reservation policies made under Article 16(4)¹ of the Constitution would be limited by Article 335,² which provides for “maintenance of efficiency of administration,” while considering the claims of the Scheduled Castes (SCs) and the Scheduled Tribes (STs) in the making of appointments to public services and posts. This was done while the Constitution does not define the term “efficiency of administration.”

This gap in interpretation was filled by a two-judge bench in the B K Pavitra (II) v Union of India (2019), as it held that “efficiency of adminis­tration in the affairs of the union or of a state must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.”

I analyse the Constituent Assembly debates to argue that contrary to what the larger benches of the Supreme Court assumed, the framers of the Constitution did not envisage that Article 16 would be limited by or subjected to Article 335. The phrase “efficiency of administration” was used as an exclusionary construct in the colonial and precolonial eras. This exclusionary understanding, I argue, was rejected during the framing of the Constitution, and thus the term “efficiency” cannot be used against the idea of reservations to exclude certain communities from ­public services.

Origins of Articles 16(4) and 335

During the framing of India’s Constitution, the Constituent ­Assembly, through a resolution on 24 January 1947, had appoin­ted an Advisory Committee to assist the assembly by drawing upon a “list of fundamental rights, clauses for protecting minorities, and a scheme for the administration of Tribal and Excluded Areas.” The Advisory Committee, consisting of the members of the assembly, divided its work between different subcommittees. When the subcommittee on fundamental rights prepared a clause on the right to “equality of opportunity,” the subcommittee of ­minorities recommended the addition of a proviso to this initial clause, to enable the government to reserve a certain proportion of posts in public services for the “minorities.” A red­rafted version of the clause, which then came before the Advisory Committee on 22 April 1947, provided for the state to make “provision for reservations in favour of classes not adequ­ately represented in the public services”.

Ambedkar, who was then a part of the Advisory Committee, supported this clause. He, however, suggested deleting the words “not adequately represented,” and that the clause be rephrased to provide reservations “in public services in favour of classes as may be prescribed by the State”. He argued that if the words “not adequately represented” were retained, any reservation made by the state “would be open to challenge in the court of law on the ground that the classes in whose favour reservation was made happened to be in fact already adequately represented” (Shiva Rao 1968: 194). Ambedkar was thus opposed to this issue being open to “judicial interpretation.” He later accepted the phrase “classes which in the opinion of the state are not adequately represented,” as suggested by K.M. Munshi, who was also in the Advisory Committee.

The clause (numbered 5), listed in the “justiciable fundamental rights” section of the Interim Report, was discussed, and adopted by the assembly on 30 April 1947. It was later reassigned as Article 10(3) of the draft Constitution prepared by the Ambedkar-led Drafting Committee with one modification: instead of the words “in favour of any particular class of citizens,” the words “in favour of any backward class of citizens” were inserted.

A slightly different recommendation for maintaining proper representation of “minorities” in services was made in a separate report. On 27 August 1947, Sardar Vallabh­bhai Patel (as Chairman of the Advisory Committee) placed before the ­assembly the subcommittee report on minority rights, which covered the claims made by several minority groups: Anglo–Indians, Parsees, Plains’ tribesmen in Assam, Indian Christians, Sikhs, Muslims, and SCs. Clause 9 of the report provided that both, in the central and provincial services, “the claims of all the minorities shall be kept in view in making ­appointments to these services consistently with the consideration of efficiency of administration”.

It was from here that the term “efficiency of administration” was brought in the text of the draft Constitution. It, however, was not defined. The report recorded that the said recommendation was made in response to a proposal submitted to the subcommittee on minorities.

Though “some administrative posts of a higher level” would have to be “filled by competition, that is, by competitive examination and competitive tests,” Patel noted that “some concessions” have been made “in the matter of certain communities which require a little help”. At this point, V.I. Muni­swami Pillai, an SC member in the assembly, remarked tha  the majority communities must remove from their minds that “those who were chosen from these communities for high ­offices will not be efficient”. Jaipal Singh, a tribal leader from erstwhile Bihar, regretted that the “most deserving group of Adibasis [tribals] has been completely left out of the picture” of reservation in services at that moment.³ The said clause was adopted by the Constituent Assembly on 28 August 1947 and was subsequently renumbered as draft Article 296.

As it is clear, draft Articles 10(3) and 296 were discussed and adopted separately by the Constituent Assembly. Article 10(3) was included in the chapter on justiciable fundamental rights and did not contain the term “efficiency of administration.” Article 296, adopted on a later date, did not refer to Article 10(3) at all. Moreover, Article 10(3) explicitly provided for reservation in services for backward classes, while Article 296 made only an assurance that the claims of minorities would be taken into consideration.

Draft Articles 10(3) and 296

The draft Article 10(3) then came up for consideration before the Constituent Assembly on 30 November 1948. Few members suggested amendments for the deletion of Clause (3). ­Lokanath Misra, a Brahmin from Odisha, argued that the clause puts “a premium on backwardness and inefficiency,” and also because it was “not a fundamental right of any citizen to claim a portion of state employment, which ought to go by merit alone”. Damodar Swarup Seth, a Vaishya from United Provinces, felt that reservation in services meant the “very negation of efficiency and good government.” The said amendments and assertions were rejected by the Constituent Assembly.

Some members from the SC community expressed their app­rehension regarding the scope of the word “backward” in draft Article 10(3), and sought an addition of the term “SCs” after “backward classes.”

Responding to their fears, K M Munshi (now a member of the Drafting Committee) said that the SCs would always be inc­luded within the broader “backward class” category for the purpose of reservation.

Pandit Hirday Nath Kunzru enquired about “the relationship” between draft Articles 10(3) and 296. According to Kunzru, the minority communities would get the benefit of reservations only if they were found to be “backward,” as draft Article 10(3) used the word “backward classes,” which was different from the term “minorities” used in Article 296.

Ambedkar clarified the difference in the scope of Articles 10(3) and 296. He explained that the purpose of draft Article 10(3) is to provide “reservations in favour of certain communities which have not so far had a ‘proper look-in,’ so to say, into the administration”. The claims of minorities for reservation, Ambedkar said, were provided a “special reference” in Article 296, so that the ­constitutional scheme does not omit the “minorities from consideration.” Article 10(3) was then passed in its tabled version and was not made subject to Article 296. As a result, the case for representation of SCs and backward classes was to be specifically addressed under Article 10(3), while Article 296 made a reference for the consideration of the claims of minorities for reservations. Both the draft articles had different purposes.

The emphasis on the representation of SCs and STs also emerged during the framing of provisions related to the Public Service Commission. On 23 August 1949, Ambedkar moved a proposal in the form of draft Article 286, defining the scope of the functions of the Public Service Commission. While Clause 3a of Article 286 provided that the Union Public Service Commission or the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts, Clause 4 disallowed any such mandatory consultation regarding “the manner in which app­ointments and posts are to be reserved in favour of any backward class citizens in the Union or a State”.

Dispute over the language

After the partition of India, the Sardar Patel-led Advisory Committee, as it claimed, concluded on the consent of the religious minority groups, particularly Muslims and Sikhs, that they would not be considered for the purpose of reservations. After this development, the Drafting Committee changed the language of draft Article 296, thereby substituting the word “minorities” with “SCs and STs.” However, in the Constituent Assembly on 26 August 1949, Naziruddin Ahmad, on behalf of a minority community, asserted that he had only agreed to giving up the “question of representation of minorities in the legislature”.

In agreement, Sardar Hukam Singh stated the minorities did not agree that “all safeguards will go or that the minorities are not to be treated as minorities”.

Since the changed language of Article 296 created a controversy in the assembly, Ambedkar formally moved a proposal on 14 October 1949 to substitute the term “minorities” with “SCs and the STs.” It is here that one member, Brajeshwar Prasad, moved an amendment to substitute Ambedkar’s version with a new language which provided that “the maintenance of efficiency of administration shall be the only consideration” in relation to “appointment to services and posts in connection with the affairs of the union or of a state” (CAI 1949c). Prasad’s argument was that only “a handful of people, constituting the cream of the Harijan society” clamoured for reservation. His amendment and contention on efficiency were rejected by the assembly.

By rejecting Prasad’s amendment, the Constituent Assembly did not allow the notion of efficiency to have an overriding effect on the claims of SCs and STs. Later, draft ­Article 10(3) was numbered as 16(4), draft Article 286 as 320, and draft Article 296 as 335.

The broad scope of Article 16(4)

The Drafting Committee had made an amendment in Clause 4 of Article 320. It added the words “the members of the SCs or STs or” to the effect that it would not be required to consult the Public Service Commission reg­arding the manner in which ­appointments and posts are to be “reserved in favour of the members of the SCs or STs or any backward class of citizens in the union or states”.

On 14 November 1949, Pandit Thakur Das Bhargava, a Brahmin Congress member from erstwhile East Punjab, moved a proposal for deletion of the newly added words “the members of the SCs or STs or”. Bhargava ­argued that Article 16(4) provided for reservations for only “backward class of citizens” and would, hence not be applicable to the SCs and STs. For them, the only safeguard, according to Bhargava, is prescribed under Article 335, which only provides for taking their claims into consideration.

He went on to argue that the amended draft Article 320(4) “takes away the effect of Article 335,” which imposes a “positive command” that the claims of the SCs and STs “must be considered consistently with the maintenance of efficiency of administration”.

Bhargava’s contentions were contrary to what was already accepted in the Constituent Assembly. As Munshi had clarified earlier (on 30 November 1948), the SCs and STs were to be always treated as a special category within the broader “backward class” category for the purpose of reservation. Pillai spoke against Bhargava’s amendment, arguing that if it is accepted, “it will mean that the SCs or Tribes will not count for reservation in the services”. P S Deshmukh demanded that in similarity to Article 320(4), the word “backward classes” be added to Article 335. Khandekar argued that amendments, such as by Bhargava, “are being moved at this stage to bury down the [SCs].” R K Sidhwa, a Parsi from erstwhile Central Provinces, opposed Bhargava’s amendment and supported the Drafting Committee, stating that “what [wrongs have] been done during the past 150 years” must be undone as soon as possible.

Mahavir Tyagi, a Brahmin member from United Provinces, stated that the “communal virus” in Article 335 was unnecessarily being introduced in another Article 320(4). Responding to Tyagi, Jaipal Singh strongly objected to the accusations against “the Drafting Committee and the SCs and the STs and any other backward classes of aligning ourselves as a communal group”. He stated that if reservations are to be provided for the most backward groups, it must be done “without any mental reservations.” He closed his speech with a simple message to the Constituent Assembly: “be generous and mean it.” Supporting the amendment proposed by Ambedkar, K Santhanam (a Brahmin member from Madras) stated that Article 320(4) was just “purely consequential to Article 335.”

Kunzru gave the clearest explanation on the scope and relation between Articles 320(4), 335 and 16(4). He stated that under Article 16(4), it is not necessary for the central government or the state government to consult the Public Service Commissions with regard to the reservation of posts for any or all of the backward classes. The article would apply to the SCs and STs. Kunzru stated that the term “SC and the STs” has been “specifically mentioned in several places” in the Constitution to place emphasis on their rights, as “they are believed to be more backward than the classes called backward according to the official terminology of the Provincial Governments”.

Thus, Article 335 “is of limited application” than Article 16, and that even if there was no Clause 4 present in Article 320, Clause 3 of Article 320 would be subject “to the provisions of clause (4) of Article 16 which embodies a fundamental right”.

The Drafting Committee moved a revised amendment to the debated version of Article 320(4), which was adopted by the assembly on 16 November 1949 in the final draft of the Constitution.

The discussion in the Constituent Assembly shows that it was only Article 16(4) which mandated and empowered the state to make reservations for backward classes of citizens, including the SCs and STs. Article 320 was consequential to Article 16(4). Article 335, as pointed out consistently by members—particularly by those opposed to reservation—was ­being treated as a mere directive. The Constituent Assembly never made Article 16(4) subject to Article 335 or 320, rather accepted it as a stand-alone and overriding provision. Reservation, as provided under Article 16(4), was thus not subjected to the notion of efficiency mentioned in Article 335.

Notes:

1. Article 16(4) of the Constitution provides: “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.”

2. Article 335 of the Constitution provided: “The claims of the members of the SCs and the STs shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the union or of a state.”

3. Later, the Constituent Assembly included Scheduled Tribes for the benefits of reservation.

Anurag Bhaskar is Assistant Professor at Jindal Global Law School, Sonipat, Haryana. Views are personal.

This article is an edited excerpt from the authors’ paper ‘Reservations, Efficiency, and the Making of Indian Constitution‘, first published in the Economic & Political Weekly (EPW) journal. Read the full paper here.

(Edited by Prashant Dixit)