The pre-natal history of the present Article 16(4) is also worth noting. Clause (5) of the Fundamentat Rights Sub-Committee Report providing for 'equality of opportunity in matters of public employment' came up for consideration of the Sub-Committee on Minorities between 17 and 19 April, 1947. Sardar Ujjal Singh made a plea that 'this clause should not debar rules being made for giving special consideration to minority communities in recruitment to public service', which was incorporated in the recommendations urging that 'a note should be made as in clause 14(1) to make it clear that a proviso may have to be added to meet the claims of minorities to special representation in the services'. The proceedings of the Advisory Committee from 21 to 22 April, 1947 on clause 5 and its proviso throw full light on how the 'minority' came to be substituted by 'classes of citizens not adequately represented in public service'.
On C. Rajagopalachari's suggestion to make the protection explicitly for minorities Ambedkar expressed his willingness to use 'minorities' instead of 'classes'. On a specific clarification about whether it was 'classes' or 'minorities' which was being given protection, K.M. Panikkar, who was responsible for initial change of words, explained that besides recognized religious minorities there might be many classes among Hindus not adequately represented in services whọ would require such protection. Syama Prasad Mookerji suggested the phrasing 'minorities and other classes'. The Chairman finally approved 'classes' which besides minorities would cover Hindu sections requiring special provision. Sardar Ujjal Singh suggested 'minorities and backward classes' without any reference to their inadequate representation. Frank Anthony wanted to have it as 'classes and minorities'.
Ujjal Singh himself agreed to having 'classes' which covered minorities. Panikkar suggested a new phrase 'classes including minorities', on which the Chairman, Sardar Patel observed 'Minorities is included in classes'.
He explained: 'This is simple English. Classes include minorities. This (i.e. "including minorities") is absolutely unnecessary: 'It is as clear as daylight ... The whole basis of the provision is minorities. You say the state will exclude minorities? Classes is a wider term. It is better to use a wider word.' To support this K.M. Munshi said: 'In section 153 A, the term classes of His Majesty's subjects has been used. "Classes" have been interpreted as minorities or religious communities also. Nobody has ever interpreted it as not meaning minorities. Thus the word 'classes of people' received approval with the explanation from the Chairman that 'the whole basis of the provision is minorities', which was considered, linguistically as well as legally, to be included in the term classes. As adopted by the. Assembly in April-May 1947, clause (5) of Fundamental Rights stood as follows: 'There shall be equality of opportunity for all citizens in matters of public employment. Nothing contained herein shall prevent the state from making provisions for reservation in favour of classes who in the opinion of the state are not adequate represented in the public services.'
It is this endeavour to safeguard the minority's fair share in public employment which got finally reflected in its new configuration as 'any backward class of citizens' in Article 16(4) of the Constitution of India. In his speech concluding the debate on 30November 1948 on Draft Article 10(3) [present Article 16(4)] B.R. Ambedkar admitted that 'the Drafting Committee undertook on its own shoulders the responsibility of introducing the word 'backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by the Assembly ... ' However, Ambedkar freely used community', 'class' and 'caste' as variants, not indicating that the new expression excluded 'minorities', with regard to whom he observed that 'there is a special reference in Article 296, where it has been laid down that some provision will be made with regard to minorities.'
It may give some comfort to minorities that the Supreme Court judgement on reservation for Backward Classes has quoted is shown to have been used as a generic term inclusive of community. Para 80[C] of the judgement notes:
That it is significant to notice that throughout his speech in the C.A., Dr. Ambedkar was using the word communities (and not castes) which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely state of Travancore ... The word 'community' is clearly wider that 'caste' and 'backward communities' meant not only the castes, wherever they may be found - but also other groups, classes and sections among.the populace.
But minorities seeking protection of Article 16(4) may find that much will depend on the proclivity of the bench. It may interpret the clause without any regard for its pre-natal history, as the Supreme Court has done on more than one occasion.
(Source: Minority Identities and the Nation-State)
