The Constitution of India, through its provisions, provides a way of reservation. The basic approach was specified in Articles 14, 15(1), 16(1) and 16(2).

 

Article 14 guaranteed equality to all: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This was the fundamental guarantee.

 

Article 15(1) declares that: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.”

Article 15(2) states that: No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels, places of public entertainment;

(b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.

Article 15(3) calls upon that:

Nothing in this article shall prevent the State from making any special provision for women and children.”

 

It can be noted that the only categories for which special provisions were envisaged were women and children. In particular, notice that no exceptions were envisaged on the basis of castes.

 

Article 16(1) made the fundamental guarantee of equality contained in Article 14 specific in another particular, one that was particularly important in those days when job opportunities were much more restricted than they are today, and governmental jobs were looked up to much more than is the case now. “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.”

Article 16(2) did for governmental employment what Article 15(1) did for a citizen’s living in general: “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

 

Article 16(4) contained a provision, and again it is important as a reminder of what the framers of the Constitution envisaged. This clause provided: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

 

On the whole, it can be said that: (a) The fundamental rights guarantee in every provision equality and non-discrimination.

(b)Caste was most consciously eschewed as Article 15(1) spoke only of women and children, while Article 16(4) spoke only of “any backward class of citizens.”

(c) Where caste was mentioned, it was only to prohibit discrimination on grounds of caste.

(d) Where ‘equality’ was made specific – in Article 16(1) in regard to employment under the State, for instance, the expression that was used was ‘equality of opportunity’, an expression that, has been buried deep under the rhetorical flourishes of progressives.

 

Also, the Constitutional framers deliberately omitted word religion under Article 29, and also under Article 46 weaker sections are to be promoted by State with special care to Scheduled Castes and Scheduled Tribes. Finally, the Constitutional framers kept the provision of reservation under the strict scrutiny of Article 335.

It provided, “The claims of members of Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of the State.”