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THE SUPREKAi: COURT JUDGhAENT 06-rj-1992)

JUi:>GMENT OF P. -B. SAWANTr, S. RATNAVAEL PANDIAN, J]

Judgment of 9-]iidge Constitution Bench of The Supreme Court of India delivered on 16-11-1992 regarding reservations in service for Sociali}/ & Edncatio?mll}/ Backward Classes and Other Economically Backward Sections, etc. IN TOE SUPREME COURT OF ]ND] A CIVIL ORIGINA L JURISDICTION

Wiit Petition (Civil) No.930 of 1990

hidra Sawhney Etc. Etc. ... Petitioners Vei'sus Union of India &Ors. Etc. Etc. ,Resj7ondents

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Writ Petition (Civil) Nos. 948, 949, 953, 954, 965, 966, 971, 972, 974, 986, 987, 1053, 1061, 1064, 1069, 1071, 1077, 1079, 1081, 1087, 1101, 1102, 1105, 1106, 1112, 1114, 1115, 1116, 1117, 1119, 1120, 1123, 1124, 1126, U28, 1130, 1141, 1148, 1158, 1276, 1307,1362, Of 1990

Writ Petition (Civil) Nos. 3, 36, 97, 343, 1094 0/1991 Writ Petition (Civil) Nos. 11, 111, 261, Of 1992 • AND

Transfer Case (civil) Nos. 27, 28-31, 32-33, 34-35, 65 Of 1990, 1 Of 1991

JUDGMENT

SAWANTJ. that everything is at large and the Court is not inhibited in its approach and conclusions by the precedents, the In a legal system where the Courts are vested view taken so far on certain facets of the subject, may be with the power of judicial review, on occasions issues hard to disregard on the principle of stare decisis. This with social, political and economic overtones come up will be more so where certain sitxiations have crystal­ for consideration. They are commonly known as poliH- lised and have become a part of the social psyche over a cal questions. Some of them are of transient importance period of time. They may be unsettled only at the risk while others have portentous consequences for genera­ of creating avoidable problems. tions to come. More often than not such issues are emo­ tionally hyper-chai^ed and raise a storm of controversy 3. The reservation in Stale employment is not a in the society. Reason and rationalism become the first phenomenon unknown to this country. It is traceable to casualties, and sentiments run high. The Courts have, a deliberate policy of affirmative action or positive dis­ however, as a part of their obligatbiy duty, to decide crimination adopted in some parts of the country as them. While dealing with them the courts have to raise early as in the bKJginning of this century, it is equally the issues above the contemporary dust and din, and known to the employment under the Central Govern­ examine them dispassionately, keeping in view, the long ment where reservations In favour of the Scheduled term interests of the society as a whole. Such problems Castes and Scheduled Tribes have been in existence foi- cannot always be answered by the strict rules of logic. a considerable time now. The reasons why the Issue has Social realities which have their own logic have also assumed agitational proportion on account of the their role to play in resolving them. The present is an present reseivatlons, may be varied. While it is true issue of the kind. that the Court is concerned with the interpretation of the provisions of the Constitiition oh the subject and 2, It is for the first time that a Nine-Judge Bench has not either with the causes of thie turmoil or the conse­ been constituted to consider issues arising out of the quence of the Interpretatioh of the law, it is eqiially true provisiorLs for reservations in the services under the that the Coristitutibh being essentially a jwlitical docu­ State under Article 16 of the Constitution. The obvious ment, has to be interpreted to m ^ t the "felt necessities purpose is to reconsider, If necessary, the propdsitibhs of the time*'i To inte^ret it, ignoring the sooal, politi­ of law so far laid doWn by this Court on the various cal, econbmic and ciilKiral i^aliti^, is to interpret it not aspects of the subject. While, therefore, it may be true as a vibrant dochiment alive to the social situation but as an imm^^3l)]e cold Iclier of law unconccrncd with the life. 1 he duly to bring alx)ut the s m o o th ch,ange over is realities- Our Constitution, unlike many olhei^, incor­ cast on all institutions including the judiciary. A deep porates iri H the framework of the social cliange that is knowledge of social life with its multitudinous facets desired be brought alx)ut. The change has to be and their interactions, is necessary to decide soicial ushered 5s expeditiously as possible but at the same issues like the present one. A superfieial approach will time w il^ the least friction and dislocation in national be counter-productive.

I'lHi GROUND REALITIES

4. Because of its pernicious caste system which may access to Icnowledge and learning was denied to the truly be rogross. The only known m edium of exercising the the prospective loss of power, is c^uite intelligible. The power is tlie administrative machinery. If that loss of employment opportunities can be made good by machinery is not sympathetic to the purpose of the ex­ generating employment elsewherx? and by adopting a ercise, the political power becom es ineffective, and at rational economic structure w ith planned economy, times is also rendered impotent. The reason why, after planned population and plannccj education. That is forty-four years of Independence and of vesting of where all sections of the society-whether pro or anti- political power in the hands of the people, the same reser%'ation should concentrate. F o r even if all available section w'hich dominated the nation's affairs earlier, posts arc reserved or dercserved, they will not provide continues to do so even today, lies here. employment to more than an infinitesimal number of either of the sections. Unfortunately, it is not logic and 7. The paradoxical spectacle of political power sanity, but emotions and p olitics v,?hich dom inate the being unable io deliver the goods to whom it desires, is issue. The loss of exclusive political power wielded neither unique nor new lo this country. This has hap­ through administrative machine^ however, cannot be pened and happens whenever the implementing avoided except by perpetuating tHe status cjuo. machinery is at cross purposes with the political power. Faced with the hostility of the administrative-executive 8. The consequences of the status quo are startling to their plans for reform, realising the inequitous dis­ and ruinous to the country. One of the major causes of tribution of posts in the administration between dif­ the backwardness of the country in all walks of life is ferent castes and communities, and being genuinely in­ the denial to more than 75% of the population, of an terested in lifting the disadvantaged sections of the opportunity to participate in the running of the affairs society in their states, the enlightened Rule's of some of of the country. Democracy does not mean mere elec­ the then Princely States took initiative and introduced tions. It also means equal and effective participation in reservations in the administrative posts in favour of the shaping the destiny of the country. Needless to say that backward castes and communitic>s since as early as the where a majority of the population is denied its share in first quarter of this century. Mysore and Kolhapur were actual power, there exists no real democracy. It is a among the first to do so. On account of the movement harsh reality. It can be mended not by ixmning away for social justice and equality started by the Justice from it or by ignoring it, but by taking effective work­ Party, the then Presidency of Madras (which then com­ able remedial measures. Those who point to the past prised the present State of Tamil Nadu, parts of the achievements and the present progress of the country, present Andhra Pradesh and Kerala) initiated reserva­ foiget that these achievements and the progress are by a tions in the Government employment in 1921. It was tiny section of the society who got an opportunity to followed by the Bombay Presidency which then com­ realise and use their talent. If all sections of the society prised the major parts of the present States of had such opportunity, this country's achievements in all Maharashtra, Karnataka and Gujarat. Thus the first fields and walks of life would have been many times quarter of this century saw reservations in Government more. That this is a realistic estimate and not a mere employment in almost whole of the Southern India. It rhetoric is proved by history. Dr. Ambedkar belongs to has to be noted that these reservations were not only in the the very recent past. If what is handed down to us favour of the depressed classes which arc today known as history is to be believed, then the epic 'Mahabharata' as the Scheduled Castes, but also in favour of other was penned by Vyasa, who was born of a fisher backward castes and classes including what were then woman; 'Ramayana' was authored by Valmiki, who known as the intermediate castes. The policy did belonged to a tribe forced to live by depredations. The arouse hostility and resistance of the higher castes even immortal poet Kalidasa's ancestry is not known. These at that time. The agitation against reservations to-day is few instances demonstrate that intelligence, perception, only a new incarnation of the same attitude o f hostility. character, scholarship and talent are not a monopoly of The resistance is understandable. It springs from the any section of the society. Given opportunity, those real prospect of the loss of employment opportunities who are condemned to the lowliest stations in life can for the eligible young. But the deeper reason of the rise to the loftiest status in society. One can only guess high castes for opposing the reservation may be the how much this country has lost for want of oppor­ prospect of losing the hitherto exclusive administrative tunities lo tlie vast majority all these centuries. This power and having to share it with others on an increas­ aspect of the present and the past history has a bearing ing scale. W hen it is realised that in a dem ocracy, the on the "merit-contention" advanced against reserva­ political executive has a limited tenure and the ad­ tions. In this connection, il will be worthwhile quoting tific nor realistic. Marks in one-time oral o r wriiten test /hat Pandit f^ehru had to say on the subject in "Dis- do not necessarily prove the woiih of suitability of an 3very of Ind individual to a pariiculai post, much less do they indi­ cate his comparative calibre. VVhal is more, for different "Therefor^/ not only must equal opportunities posts, different tests have to be applied to judge the be given to all, but special opportunities for suitability. The basic problems of this c o u n iry arc n-iass- educational, economic and cultural growth oriented. India lives in villages, and in slums in towns must be given to backward groups so as to and cities. To tackle their problems and to implement enable tbcm to catch up with those who are measures to better their lot, the country needs person­ ahead of them. Any such attempt to open the nel who have first-hand kiiowledge of their problem.s door of opportunities to all in India will release and have personal interest in solving tliem. What is enonnous enei^y and ability and transform the needed is empathy and not mere sympathy. One of the country with amazing speed." major reasons why during all these years after Inde­ pendence, the lot of the downtrodden has not even been I. The inequalities in Indian society are bom in marginally improved and why majority of the schemes \omes and sustained through every medium of social for their welfare have remained on paper, is perceptibly idvancement. Inhuman habitations, limited and crip- traceable to the fact that the implementing machinery ?ling social intercourse, low-grade educational institu- dominated as it is by the high classes, is indifferent to ions and degrading occupations perpetuate the inequi- their problems. The Mandal Commission's lament in its ies in myriad ways. Those who are fortunate to make report, that it did not even receive replies to the infor­ :heir escape from these all-peivasive dragnets by mation sought by it from various Governments, depart­ managing to attain at least the minimum of attainments ments and organisations on the caste-wise composition in spite of the paralysing effects of the debilitating so- of their services, speaks volumes on the point. A policy :ial environment, have to compete with others to cross of deliberate reservations and recruitment in ad­ the threshold of their backwardness. Are not those at­ ministration from the lower classes, who fonn the bulk tainments, however low by the traditional standards of of tlie population and whose problems primarily are to measuring them, in the circumstances in which they are be solved on a priority basis by any administration with gained, more creditablc? Do they not show sufficient democratic pretensions, is therefore, not only eminently grit and deteimination, intelligence, diligence, poten-' just but essential to implement the Constitution, and to tiality and inclination towards learning and scholar­ ensure stability, unity and prosperity of the country. ship? Is it fair to com pare these attainm ents with those of one who had all the advantages of decent ac­ 11. VVl^at should further not be forgotten is that commodation with all the comforts and facilities, en­ hitherto for centuric»s, tl\ere have been cent per cent lightened and affluent family and social life, and high i-Gservatioas in practice in all fields, in favour of the quality education? Can the advantages gained on ac­ high castes and classes, to the total exclusion of others. count of the superior social circumstances be put in the It was a purely caste and class-based reservation. The scales to claim merit and flaunted as fundamental administration in the States where the resei-vations are rights? May be in many cases, those coming from the in vogue for about three quarters of a century now, fur­ high classes have not utilised their advantages fully and ther cannot be said to be inferior to others in any their score, though compared with others, is high, is in manner. The reservations are aimed at securing proper fact not so when evaluated against the backdrop of their representation^in administration to all sections of the superior advantages-may even be lower. \\^ith the same society, intelligence and administrative capacity being advantages, others might have scored better. In this not the monopoly of any one class, caste or community. connection, Dr. Ambedkar's example is worth citing. In This would help to promote healthy administration of his matriculation examination, he secured only 37.5% of the country avoiding sectarian approaches and securing the marks, the minimum for passing being 35% (See: the requisite talent from all available sources. "Dr. Ambedkar" by Dr. Dhananjay Keer). If his poten­ tialities were to be judged by the said marks, the 11 A. The assumption that the reservations lead to country would have lost the benefit of his talent for all the appointment or admission of non-meritorious times to come. candidates is also not factually correct. In the first instance, there are minimum qualifying marks 10. Those who advance merit contention, unfor­ prescribed for appointment/admission. Secondly, there tunately, also ignore the very basic fact-(though in other is a fierce competition among the backward class can­ contexts, they may be the first to accept it)-that the didates for the scats in the reserved quota. This has traditional method of evaluating merit is neither scien­ resulted in the cut-off marks for the seats in the r e s e r v e d q u o t a reaching near she cu<-off iine for seats in of Tamil Nadu by Era Sczhian and published in the

the g e n e r a ) q u o t a a s some surv'cys made on (he subject issue of the "Hindu" dated 8 t h Octob

Selection to professional courses: Cut-off level

Course of Study Open Backward M ost Scheduled Competition Backward Caste

Engineering Course (Anna University)

Computer Science 97.98% 96.58% 93.25% 84.38% Electronics 97.74% 96.08% 92.16% 82.22% Electrical 95.84% 95.42% 91.48% 81.98% Mechanical Engg. 95.78% 94.10% 90.66% 79.21%

Medical Course (University of Madras)

M.B.B.S. 95.22% 93.18% 89.62% 83.98%

Agricultural Course (Agricultual University, Coimbatore)

B.Sc. Agri. 90.90% 90.08% 86.10% 78.04% B.E. Agri, 92.66% 91.96% 87.46% 76.14%

Veterinary (Tamil Nadu Veterinary & Animal Sciences University)

BVSc. 94.90% 93.48% 91.18% 85.24% BFSc. 96.96% 95.58% 95.02% 93.02%

By what logic can il be said that the above marks representation at all levels of the administration in one secured by the candidates from the backward classes generation. More difficult it is to do so in all fields and are not meritorious? all branches of administration, and at the same pace. It will not only be destructive of the object of reservations 12. The reservations by their very nature have, how­ but will positively be harmful even to those for whom it ever, to be imaginative, discriminating and gradual, if is meant-not speak of the society as a whole. It must be they are to achieve their desired goal. A dogmatic, un­ remembered that some individual exceptions apart, realistic and hasty approach to any social problem even the advanced classes have not made it to the top in proves, more often than not, self-defeating. This is one generation. Such exceptions are found in backward more so when ills spread over centuries are sought to be classes as well. remedied. It is.not possible to remove the backlog in PHILOSOPHY AND OBJECTIVES OF RESERVAnONS

13. The aini of any civiliscd socicty should be to them as ondained by the Preamble of the Constitution. secuTX? dignity lo every individual. There cannot be dig­ nity withoijt equality of status and opportunity. The 17. it is no longer necessary to emphasise that absence o f equal opportunities in any walk of social life equality contemplated by Article 14 and other cognate is a denial of equal status and equal participation in the Articles including Articles 15 (1), 16 (1), 29 (2) and 38 (2) affairs of the society and, therefore, of its equal member­ of the Constitution, is secured not only when equals are ship. The dignity of the individual is dented in direct treated equally but also when unequals are treated une­ proportion to his deprivation of the equal access to so­ qually. Conversely, when unequals are treated equally, cial means. The democratic foundations are missing the mandate of equality before law is breached. To when equal opportunity to grow, govern, and give bring about equality between the unequals, therefore, one's best to the society is denied to a sizeable section of it is nece.ssary to adopt positive measures to abolish the society. The deprivation of the opportunities may inequality. The equalising measures will have to use be direct or indirect as when the wherewithals to avail the same tools by which inequality was introduced and of them are denied. Nevertheless, the consequences are perpetuated. Otherwise, equalisation will not be of the as potent. unequals. Article 14 which guarantees equality before law would by itself, without any other provision in the 14. Inequality ill-favours fraternity, and unity Constitution, be enough to validate such equalising remains a dream without fraternity. The goal measures. The founders of the Cor\stitution, however, enumerated in the Preamble of the Constitution, of thought it advisable to incorporate another provision, fraternity assuring the dignity of the individual and the viz.. Article 16 specifically providing for equality of op­ unity and integrity of the nation must, therefore, remain portunity in matters of public employment. Further unattainable so long as the equality of opportunity is they emphasised in clause (4) thereof that for equalising not ensured to all. the employment opportunities in the services under the State, the State may adopt positive measures for reser­ 15. Likewise, the social and political justice pledged vation of appointments or posts in favour of any back­ by the Preamble of the Corvstitution to be secured to all ward class of citizens which in the opinion of the State, citizens, will remain a myth unless first economic jus­ is not adequately represented in such services. By hind tice is guaranteed to all. The liberty of thought and sight, the foresight shown in making the provision expression also will remain on paper in the face of specifically, instead of leaving it only to the equality economic deprivations. A remunerative occupation is a provision as under the U.S. Constitution, is more than means not only of economic upliftment but also of in­ vindicated. In spite of decisions of this Court on almost stilling in the individual self-assurance, self-esteem and all aspects of the problem, spread over the past more self-worthiness. It also accords him a status and a dig­ than forty years now, the validity, the nature, the con­ nity as an idependent and useful member of the society. tent and the extent of the reservation is still under It enables him to participate in the affairs of the society debate. The absence of such provision may well have without dependence on, or domination by, others, and led to total denial of equal opportunity in the most vital on an equal plane depending upon the nature, security sphere of the State activity. Consequently, Article 38 (2) and remuneration of the occupation. Employment is an which requires the State in particular to strive to mini­ inlportant and by far the dominant remunerative oc­ mise the inequalities in income, and endeavour to cupation, and when it is with the Government, semi- eliminate inequalities in status, facilities and oppor­ Govemment or Government-controlled oi^anisation, it tunities, not only amongst individuals but also among has an added edge. It is coupled with power and pres­ groups of people residing in different areas or engaged tige of varying degrees and nature, depending upon the in different vocations, and Article 46 which enjoins establishment and the post. The employment under the upon the State to promote with special care the educa­ State, by itselt, may, many times help achieve the triple tional and economic interests of the weaker sections of goal of social, economic and political justice. the people, and to protect them from social injustice and all forms of exploitation, and Article 335 which requires 16. The employment-whether private or public-thus, the State to take into consideration the claims of the is a means of social levelling and when it is public, is Scheduled Castes and Scheduled Tribes in making the also a mearus of directly participating in the running of appointments to services and posts under the Union or the affairs of the society. A deliberate attempt to secure States, would have, all probably remained on paper. it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to 18, The trinity of the goals of the Constitution, viz.. socialism, secularism and democracy cannot be avalised caste, il is nol a rc'servation in favour of the casU; lh a unless all sections of the society participate in the Slate "caste" but in favour of a class or social grtnip which has power equally, irrespective of their caste, community, been discriminated against, which discrimination can­ race, fx>ligion and sex and all discriminations in the not be eliminated, otherwise. W hat the Constitution sharinj^ of the State power made on those grounds are forbids is discrimination "only" on the basis of caste, eliminated by positive measures. races etc. However, when the caste also happens to bo a social group which is "backward" or "socially and 19. Under Article 16 (4), the reservation in the State educationally backward" or a "weaker section", this dis­ employment is to be provided for a "class of people" criminatory treatment in its favour, is not only on the which must be "backward" and "in the opinion of the basis of the caste. State" is "not adequately represented" in the services of the State. Under Article 46, the State is required to 21. The objectives of reservation may be spelt out "promote with special care" the "educational and variously. As the U.S. Supreme Court has stated in dif­ economic interests" of the "weaker sections" of the ferent celebrated cases, viz., Oliver Brown et. al v. Board of people and "in particular", of the Scheduled Castes and Eductin of Topeka et. al (347 US 483: 98 L Ed 873), Spot- Scheduled Tribes, and "to protect" them from "social in­ tswood Thomas Bolling et. al v. C. M elvin Sharpe et. al. v. justice" and "all forms of exploitation". Since in the Charles Odegaard (416 US 312: 40 L Ed 2d 164), Regents of present case, we are not concerned with the reserva­ the University of California v. Allan Bakke (438 US 265 : 57 tions in favour of the SCs/STs, it is not necessary to L Ed 2d 7; 50), H. Earl Fullilove et. al v. Philip M . refer to Article 335 except to point out that, it is in terms Klutznick (448 US 448 : 65 L Ed 2d 902), and Metro Broad­ provided there that the claims of SCs/STs in the ser­ casting, Inc. V. Federal Communications Commission (111 L vices are to be taken into consideration, consistently Ed. 2d 445) rendered as late as on June 27, 1990, the with the maintenance of efficiency of administration. It reservation or affirmative action m ay be undertaken to must, therefore, mean that the claims of other backward remove the "persisting or present and continuing effects class of citizens and weaker sections must also be con­ of past discrimination"; to lift the "limitation on access sidered consistently with the maintenance of the ef­ to equal opportunities"; to grant "opportunity for full ficiency. For, whomsoever, therefore, reservation is participation in the government" of the society; to made, the efficiency of administration is not to be recognise and discharge "special obligations" towards sacrificed, whatever the efficiency may mean. That is the disadvantaged and discriminated social groups"; "to the mandate of the Constitution itself. overcome substantial chronic under-representation of a social group"; or "to serve the important governmental 20. The various provisions in the Constitution objectives". What applies to American society, applies relating to reservation, therefore, acknowledge that ex proprio vigore to our society. The discrimination in reservation is an integral part of the principle of our society is more chronic and its continuing effects equality where inequalities exist. Further they accept more discernible and disastrous. Unlike in America, the the reality of inequalities and of the existence of une­ all pervasive discrimination here is against a vast qual social groups in the Indian society. They are majority. described variously as "socially and educationally back­ ward classes" (Article 15 (4) and Article 340), "backward 22. As has been pointed out earlier, our Constitution class" (Article 16 (4) and "weaker sections of the people" itself spells out the important objectives of the State (Article 46). The provisions of the Constitution also Policy. There cannot be a more compelling goal than to direct that the unequal representation in the services be achieve the unity of the country by integration of dif­ remedied by taking measures aimed at providing ferent social groups. Social integration cannot be employment to the discriminated class, by whatever achieved without giving equal status to all. The ad­ different expressions the said class is described. How ministration of the country cannot also be carried on does one identify the discriminated class is a question impartially and efficiently v^ithout the representation in of methodology. But once it is identified, the fact that it it of all the social groups and interests, and without the happens to be a caste, race, or occupational group, is aid and assistance of all the views and social experien­ irrelevant. If the social group has hitherto been denied ces. Neither democracy nor unity will become real, un­ opportunity on the basis of caste, the basis of the less all sections of the society have an equal and effec­ remedial reservation has also to be the caste. Any other tive voice in the affairs and the governance of the basis of reservation may perpetuate the status quo and country. may be inappropriate and unjustified for remedying the discrimination. When, in such circumstances, provision 23. In a society such as ours where there exist for­ is made for reservations, for example, on the basis of ward and backward, higher and lower sociai groups, 10 the fir^*stcp to achicve social integration is to bring the ficult. Employment is thus an important aid for cul­ lower backward social groups to the level of the for­ tural grt^wth. To achieve total unity and integration of ward higher social groups. Unless all social groups the nation, reservations in employment are, therefore, are brought on an equal cultural plane, social inter- imperative, in the present state of ou r society. coui'se ?,niong the groups will be an impossibility. Inter-marriage as a mailer of course and without inhibi­ 24. Under the Constitution, the reservations in tions is by far the most potent means of effecting social employment in favour of backward classes are not in­ integf^^tion. Inter-m arriages between different social tended either to be indiscriminate or permanent. Ar­ groups would not be possible unless all groups attain ticle 16 (4) which provides for reservations, also at the the same cultural level. Even in the same social group, same time prescribes their limits and conditions. In the marriages take place only between individuals who are first place, the reservations are not to be kept in favour on the same cultural plane. Culture is a cumulative of every backward class of citizens, it is only that back­ product of economic and educational attainments lead­ ward class of citizens which, in the opinion of the State, ing to social accomplishment and refinement of mind, is "not adequately represented" in the services under the morals and taste. Etrtployment and particularly the State, which is entitled to the benefit of the reservations. governmental employment promotes economic and so­ Secondly, and this follows from the first, even that back­ cial adlvancement which in turn also leads to education­ ward class of citizens would cease to be the beneficiary al advancement of the group. Though it is true that of the reservation policy, the moment the State comes to economic and educational advancenient is not neces­ the conclusion that it is adequately represented in the sarily accompanied by cultural growth, it is also equally services. true that without them, cultural advancement is dif­

THE IMPUGNED ORDERS OF THE GOVERNMENT

25. In order to appreciate the n.'levance of the ques­ (3) leave the procedure to be followed for enforc­ tions which are to l>e answered by this Court, it is neces­ ing reservation to be detailed in instructions to sary first to analyse the provisions of the two impugned be issued separately; orders. The first order dated 13th August, 1990, ac­ knowledges the fact that our socicly is multiple and (4) make it clear that those belonging to SEBCs undulating, and expressly refei-s to the Second Back­ who enter into services in the open i.e., un­ ward Classes Commission, popularly known as Mandal reserved category are not to be counted for the Commission and its report submitted to the Govern­ purpose of calculating the reserved quota of ment of India on 31st E)ecember, 1980 and the purpose 27%; for which the Commission was appointed, viz., for (5) specify that in the first phase of reservation, it early achievement of "the objective of social justice" is only SEBC castes and communities which enshrined in the Constitution. The order then states are common to both the lists given in the that the Government have considered carefully, the report of the Mandal Commission and the list report of the Commission and the recommendations of prepared by the State Governments, would be the Commission in "the present context" regarding the the beneficiaries of the reservations; benefits to be extended to the "Socially and Education­ ally Backward Classes" (SEBCs) as opined by the Com­ (6) state that the list of such common castes and mission. The oixder further declares that the G overn­ communities will be issued by the Govern­ ment are of the clear view that at the outset "certain m ent separately; weightage is to I>e provided to such classes in the ser­ vices of the Union and other public undertakings". (7) give effect to the reservation from 7th August With this preface, the order proceeds to: 1990; and

(1) provide for reservation of 27% of the vacancies (8) explain that the reservation quota will apply in civil posts and services under the Union not only to the services under the Government Government to "SEBCs"; of India but also to the services in the public sector undertakings and financial institutions (2) restrict the reservations to the vacancies to be including the public sector banks; filled in by dii'ect recruitment only (and thus by necessary implication excludes reservations 26, This order was amended by the second order of in recm itm ent by promotion); 25th September, 1991. The first purpose of the amend- mcnt, stated in ihc opening pardgrojih of the (jrdor is ]6 (!) and would be exliaustive of the riglit to to clas^^ily the SEBCs into two categories, namely, SEBCs rescrv'ation of posts in services under t!ic State? and the poorer sections of the SF.BCs, and to give the latter benefit of ix'servations on prefeix'ntial basis. 28. With the majority decision o f this court in Slcite of The sc’cond purpose is to car\'c out a new category of Kcrulii & Anr. V. N.M. llwwns & O rs. ((1976) 1 SCR 906] "Other Economically Backwaixi Sections" of the people having confirmed the minority opi nion of Subba Rao, j (OEBSs) which are not covered by any existing schemcs in T. Dcvadiisan vs. Union of India Anr. [(1964) 4 SCR of reservation, and to provide rescrv'ation in services for 680], the settled judicial view is that clause (4) of Article them. To effectuatc these two objectives, the order 16 is not an exception to clause (1) thereof, but is merely provides that: an emphatic way of stating what is implicit in clause (!)• (1) out of the 27% of the vacancies reserved for 29. Equality postulates not merely legal equality but SEBCs, preference shall be given to candidates also real equality. The equality of opportunity has to be belonging to poorer sections of SEBCs. If suffi­ distinguished from the equality of results. The various cient number of candidates belonging to provisions of our Constitution and particularly those of poorer sections of SEBCs are not available, the Articles 38, 46, 335, 338 and 340 together with the unfilled vacancies shall be filled by other SEBC Preamble, show that the right to equality enshrined in candidates: our Constitution is not merely a formal right or a (2) 10% of the vacancies in civil posts and services vacuous declaration. It is a positive right, and the State shall be reserved for "Other Economically is under an obligation to undertake measures to make it Backward Sections of the people" (OEBSs)' real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to (3) The criteria for determining poorer sections of compete with each other on equal plane, it is necessary the SEBCs as well as OEBSs are to be issued to take positive measures to equip the disadvantaged separately. and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and 16 (1) no doubt The effect of the second order is to increase the would by themselves permit such positive measures in reservations by 10% making the total reservations in the favour of the disadvantaged to make real the equality civil posts and services 59-1/2% (22-1/2% for SCs/STs guaranteed by them. However, as pointed out by Dr. + 27% for SEBCs + 10% for OEBSs) Ambedkar while replying to the debate on the provision in the Constituent Assembly, it became neces­ 27. As has been pointed out earlier, Article 16(4) does sary to incorporate clause (4) in Article 16 at the insis­ not use the expression "Socially and Economically Back­ tence of the members of the Assembly and to allay all ward Classes". Instead it uses the expression "Back­ apprehensions in that behalf. Thus, what w'as otherwise ward Class of Citizens". It is Article 15 (4) and Article clear in clause (1) where the expression "equality of op­ 340 which use the expression "Socially and Educational­ portunity" is not used in a formal but in a positive ly Backward Classes". Since the judicial decisions have sense, was made explicit in clause (4) so that there was equated the expression "backward class of citizens" no mistake in understanding cither the real import of with the expression "Socially and Educationally Back­ the "right to equality" enshrined in the Constitution or ward Classes of citizens", it appears that the impugned the intentions of the Constitution-framers in that behalf. orders have used the two expressions synonymously to As Dr. Ambedkar has stated in the same reply, the pur­ mean the same class of citizens. The second order has pose of the clause (4) was to emphasise that "there shall gone even further. It has carved out yet another class of be reservation in favour of certajn communities which beneficiaries of reservation, namely, "Other Economical­ have not so far had 'a proper look into, so to say, in the ly Backward Sections". As would be pointed out a little administration." later, this new class of citizens cannot be a beneficiary of reservations in services under clause (4) of Article 16 30. If, however, clause (4) is treated as an exception nor under Clause (1) thereof. to clause (1), an important but unintended coiHsequence may follow. There would be no other classification per­ We may now proceed to deal with the specific missible under clause (1), and clause (4) would be questions raised before us. deemed to exhaust all the exceptions that can be made to clause (1). It would then not be open to make Question I provision for reservation in services in favour of say, Whether Article 16 (4) is an exception to Article physically handicapped, army personnel and freedom 12 fighters arid their depGndenls, project affected persons, with the expression "Socially and Educationally Back­ etc. The classification made in favour of persons ward Classes of citizens ("SEBCs" for short) found in belonging to these categories is not hit by clause (2). Article 15 (4) and Article 340. Even the impugned or­ Apart frcirn the fact that they cut across all classes, the ders have used the expression "socially and education­ reservations in their favour arc made on considerations ally backward classes of citizens". As a matter of fact, other than that of backv^'ardness within the meaning of since the impugned orders have chosen to give the clause (4)- Some of them m ay belong to the backw^ard benefit of reservation expressly to SEBCs and since it is classes while some may belong to forward classes or not suggested that SEBCs are not "backward class of classes which have an adequate representation in the citizens" within the meaning of Article 16 (4), the dis­ services. They are, however, more disadvantaged in cussion on the point is purely academic in the present their own class whether backward or forward. Hence, case. even on this ground it will have to be held that Article 16 (4) carves out from various classes for whom reserva­ 34. In this connection, a reference may first be made tion can be made, a specific class, viz., the backward to Article 335 of the Constitution. There is no doubt that class of citizens, for emphasis and to put things beyond backward classes under Article 16 (4) would also in­ doubt. clude SCs/STs for whose entry into services, provision is also made under Article 335. There is, however, a 31. For these very reasons, it will also have to be held difference in the language of the two Articles. Whereas that so far as "backward classes" are concerned, the the provision of Article 16 (4) is couched in an enabling reservations for them can only be made under clause (4) language, that of Article 335 is in a mandatory cast. It since they have been taken out from the classes for appears that it became necessary to make the additional which reservation can be made under Article 16 (1). provision of reservations for SCs/STs under Article 335 Hence, Article 16 (4) is exhaustive of all the reservations because for them the reservations in services were to be that can be made for the backward classes as such, but made as obligatory as reservations in the House of the is not exhaustive of reservations that can be made for People and the Legislative Assemblies under Article 330 classes other than backward classes under Article 16 (1). and 332 respectively. When we remember that Articles So also, no reservation can be made under Article 16 (4) 330, 332 and 335 belong to the family of Articles in Part for classes other than "backward classes" implicit in that XVI which makes "Special Provisions Relating to Cer­ Article. They have to look for their reservations, to Ar­ tain Classes", the additional and obligatory provision ticle 16 (1). for SCs/STs under Article 335 becomes meaningful, it is probably because of the mandate of Article 335 and 32. It may be added here that reservations can take the level of backwardness of the SCs/STs-the most various forms whether they are made for backward or backward among the backward classes-that it also be­ other classes. They may consist of preferences, conces­ came necessary to caution and emphasise in the same sions, exemptions, extra facilities etc. or of an exclusive vein, that the imperative claims of the SCs/STs shall be quota in appointments as in the present case. When taken into consideration consistently with the efficiency measures other than an exclusive quota for appoint­ of the administration, and not by sacrificing it. It can­ ments are adopted, they form part of the reservation not, however, be doubted that the same considerations measures or are ancillary to or necessary for availing of will have to prevail while.making provisions for reser­ the reservations. Whatever the form of reservation, the vation in favour of all backward classes under Article 16 backward classes have to look for them to Article 16 (4) (4). To hold otherwise would not only be irrational but and the other cla.sses to Article 16 (1). discriminatory between two classes of backward citizens. Question II;

What would be the content of the phrase 35. We may now analyse Article 16 in the light of the "Backward Class" in Article 16 (4) of the Con­ question. In the first instance, it is necessary to note stitution and whether caste by itself could con­ that neither clauses (1) and (2) of Article 16 read stitute a class and whether economic criterion together, nor clause (2) of Article 29 prohibits dis­ by itself could identify a class for Article 16 (4) crimination and, therefore classification, which is not and whether "Backward Classes" in Article 16 m ade only on the ground of religion, race, caste, sex, (4) would include the "weaker sections" men­ descent, place of birth, residence or any of them. They tioned in Article 46 as well? do not prevent classification, if religion, race, caste etc. are coupled with other grounds or considerations ger­ 33. The courts have, as will be instantly pointed out, mane for the purpose for which its is made. Secondly, equated the expression "backward classes of citizens" clauses (1) and (2) of Article 16 prevent discrimination 13

against individuals and not against classcs of citizens. Court n?ad "backward class of citizens" in Article 16 (4) Thirdly, clausc (4) of Article 16 enables the Stale to make as "socially and educationally backward class of sp^?cial provision in favour of any backward "class" of citizens", although Justice Palokar who delivered the citizens and not in favour of citizens who can be clas­ judgement for the Court, proceeded to equate the two sified as backward. The emphasis is on "class of expressions on the assumption that "it was well-settled citizens" and not on "citizens". Fourthly, as has already that the expression "backward class" in Article 16 (4) be<2n pointed out earlier, the class of citizens under Ar­ means the same thing as the expression "any socially ticle 16 (4) has not only to be backward but also a class and educationally backward classes of citizens" in Ar­ which is not adequately represented in the services ticle 15 (4)". It is true that no decision prior to this under the State. Fifthly, when we remember that the decision had in terms sought to equate the two expres­ Scheduled Castes and Scheduled Tribes are also the sions, and to that extent the said statement can be members of the the backward classes of citizens within faulted as it is sought to be done before us. the meaning of Article 16 (4), the nature of backward­ ness of the backward class of citizens is implicit in In K.C. Vasanth Kumar & Anr. v. State of Karnataka Article 16 (4) itself. Further, Part XVI of the Constitu­ [(1985) Supp. 1 SCR 352], this Court was called upon to tion which makes special provision under Article 338 express opinion on the issue of reservations which may for National Commission for Scheduled Castes and serve as a guideline to the Commission which the Scheduled Tribes for investigating their conditions, Government of Karnataka proposed to appoint for ex­ makes a similar provision under Article 340 for appoint­ amining the question of affording better employment ment of Commission to investigate the conditions also and educational opportunities to the Scheduled Castes of "socially and educationally backward classes of and Scheduled Tribe's and o th er backward classes. citizens". The two provisions leave no doubt about the Hence, the interpretation of the expression "backward kind of backwardness that the Constitution takes care class of citizens" under Article 16 (4) and of the expres­ of in Article 16 (4). What is more, clause (4) of Article 15 sion "socially and educationally backward classes" which was added after the decision in The State of under Article 15 (4) and their co-relation, fell for con­ Madras v. Sritnathi Champakam Doraiy-ajan etc. [(1951) SCR sideration directly. The five Judges of the Bench with 525] specifically mentions that nothing in Article 15 or the exception of Chief Justice Chandrachud expressed in clause (2) of Article 29, shall prevent the State from their opinion on these two expressions. Desai, J. held making any special provision for the advancement of that "Courts have more or less.....veered round to the any "socially and educationally backward classes of view that in order to be socially and educationally back­ citizens or for the Scheduled Castes and Scheduled ward classes, the group must have the same indicia as Tribes". The significance of this amendment should not Scheduled Castes and Scheduled Tribes". The learned be lost sight of. It groups "socially and educationally Judge then proceeded to deal with what, according to backward classes" with "Scheduled Castes and him, was a narrow question, viz., whether caste-lable Scheduled Tribes". When it is remembered that Articles should be sufficient to identify social and educational 341 and 342 enable the President to specify by notifica­ backwardness- However, it appears that the learned tion, the Scheduled Castes and Scheduled Tribes, it can Judge proceeded on the footing that the expression hardly be debated that such specifications from time to "backward class of citizens" was synonymous with the time may only be from the socially and educationally expression "socially and educationally backward classes backward classes or from classes whose economic back­ of citizens". There is no discussion whether the two wardness is on account of their social and educational expressions are in fact similar and of the reasons for the backwardness. same. Chinnappa Reddy, J. dealt with the two expres­ sions a little extensively and came to the conclusion as We may now refer to the decisions of this Court follows: on the point. "Now, it is not suggested that the socially and 36. In M .R. Balaji & Ors. v. State of Mysore [(1963) educationally backward classes of citizens and Supp. 1 SCR 4391], what fell for consideration was Ar­ the Scheduled Castes and the Scheduled Tribes ticle 15 (4), and on the language of the said Article, it for whom special provision for advancement is was held by this Court that the backwardness con­ contemplated by Article 15 (4) are distinct and templated by tlie said Article was both social and separate from the backward classes of citizens educational. It is not either social or educational buf it who are inadequately represented in the ser­ is both social and educational. In Janki Prasad Parimoo & vices under the state for whom reservation of Ors. etc. etc. v. State of Jammu & Kashmir & Ors. [(1973) 3 posts and appointments is contemplated by Ar­ SCR 236] which was a case under Article 16 (4), this ticle 16 (4). The backward classes of citizens' 14

rcfcrrc^^ to in Articlc 16 (4), despite the short defined were known to be backward and the description, arc the same as 'the socially and Constitution makers felt no doubt ihat special educat'■f'inally backward classes of citizens and provision had to be made for their advance­ the Scheduled Castes and the vScheduled ment. It was rcalised that in the Indian society Tribes'/ so fully described in Art. 15 (4); Vide there were other classes of citizens who were Trilokif^(^th Tiku v. State of jnmniu & Kashmir and equally, or may be somewhat less, backward other cases." than the Scheduled Castes and Tribes and it was thought that some special provision ought Sen, J. also appears to have proceeded on the to be made even for them". fooling that the two expressions, viz., "socially and education^illy backw'ard classes"undcr Article 15(4) and After referring to the provisions of Articles 338 "backward class of citizens" under Article 16(4) are (3), 340 (1), 341and 342, the Court proceeded to hold as synonymous. follows:

Venkatarmiah, J. (as he then was) held that "Ar­ "It would thus be seen that this provision con­ ticle 15(4) and Article 16(4) are intended for the benefit templates that some Backward Classes may by of "those vs'ho belong to castes, communities which are the Presidential order be included in Scheduled traditionally disfavoured and which have suffered Castes and Tribes. That helps to bring out the societal discrimination in the part". The other factors point that the Backward Classes for whose im­ such as physical disability, poverty, place of habitation provement special provision is contemplated etc. -according to the learned judge-were never in the by Art. 15(4) arc in the matter of their back­ contemplation of the makers of the Constitution while wardness comparable to Scheduled Castes and enacting these clauses." The learned judge has held that Scheduled Tribes". "while relief may.be given in such cases under Article 14,15 (1) and Article 16(1) by adopting a rational prin­ 39. The test laid down above of similarity of social ciple of classification, Article14, Article 15,(4) and Ar­ and educational backw^ardness was accepted in P. ticle 16 (4) cannot be applied to them". I'he learned Srt^^«r(supra). Judge has further held that "it is now accepted that the 40. However, in State of Andhra Pradesh &Ors. v. expressions 'socially and educationally backward clas­ U.S.V. Bah-ani etc. ((1972) 3 SCR 247), the earlier view ses of citizens' and 'the Scheduled castes and the has been explained by pointing out that the above Scheduled Tribes' in Article 15 (4) of the Constitution decisions do not lay down that backwardness of the together are equivalent to 'backward class of citizens' in other backwaixl classes must be exactly similar in all Article 16(4)". respects to that of the Scheduled Castes and the 37. There is, therefore, no doubt that the expression Scheduled Tribes. Further, in Parimoo (supra) the test "backwani class of citizens" is wider and includes in it laid dow n in Balaji has been explained in the following "socially and educationally backward classes of w ords: citizens" and "Scheduled Castes and Scheduled Tribes". "Indeed all sectors in the rural areas deserve en­ 38. The next question is whether the social and couragement but whereas the farmer by their educational backwardness of the other backward clas­ enthusiasm for education can get on without ses has to be akin to or of the same level as that of the special treatment, the latter require to be Scheduled Castes and the Scheduled Tribes. It is true goaded into the social stream by positive efforts that some decisions of this court such as Balaji (supra) by the slate. That accounts for the raison d'etre and State of Andhra Pradesh & Anr. V.P.Sagar ( (1968) of the principle explained in Balaji's case which 3SCR 595) have taken the view that the backwardness pointed out that backward classes for whose of the backward class under Article 16 (4) being social improvement special provision was con­ and educational, must be similar to the backwardness templated by Article 15(4) must be comparable from which the Scheduled Castes and the Scheduled to Scheduled Castes and Scheduled Tribes who Tribes suffer. In Balaji it is stated: are standing examples of backwardness socially and educationally. If those examples are steadi- "It seems fairly clear that the backward classes . ly kept before the mind the difficulty in deter­ of citizens for whom special provision is mining which other classes should be ranked as authorised to be made are, by Article 15 (4) it­ backward classes will be considerably eased." self, treated as being similar to the Scheduled Castes and Scheduled Tribes which have been In Kuwari K.S. Jaynshree and Anr. v. State of Kerahi 15

&Anr.((}977) 1 SCR 194 at 197-198) it is stated : honourable membc-i-s vv/il) ivajise that iho Draft­ ing Committee whicli has boon ridiculed on "backward classes for whose improvement spe­ more than one ground for producing some­ cial provisions are contemplated by Article times a loose Draft, son'ietimes something 15(4) are in the matter of their backv^ardness which is not appropriate and so on, might have comparable to Scheduled Castes and Scheduled opened itself lo further attack that they Tribes. This court has emphasised in decisions produced a Draft Constitution in which the ex­ tliat the backwardness under Article 15 (4) must ception was so lai-ge, that it left no roon-i for the be both social and educational. rule to operate. I think this is sufficient to jus­ tify why the word 'backward' has been used The Concept of backwardness in Article 15 (4) is not intended to be relative in the sense that Somebody asked me :"VVhat is a backward classes who are backward in relation to the community"? Well, I think any one who reads rnost advanced classes of society should be in­ the language of the draft itself will find that we cluded in it." have left it to be detennined by each local Government. A backward comunity is a com­ 41. These observations will also show that the test of munity which is backward in the opinion of the comparable backwardness laid down in Bcdaji has not Government". been and is not to be, understood to mean that back­ wardness of the other backward classes has to be of the 42. It will have, theefore, to be held that the back­ same degree as or identical in all respects to, that of the wardness of the backward classes other than the Scheduled Castes and the Scheduled Tribes. At the Scheduled Castes and Scheduled Tribes who arc en­ same time, the backwardness is not to be measured in titled to the benefit of the reservations under Article 16 terms of the forwardness of the forward classes and (4) , need not be exactly similar in all n?spects to the those who are less forward than the forward are to be backwardness of the Scheduled Castes and Scheduled classified as backward. The expression "backward class Tribes. That it is not nccessary that the social ,educa­ of citizens", as stated earlier, has been used in Article 16 tional and economic backwardness of the other back­ (4) in a particular context taking into consideration the ward classes should be exactiy of the same kind and social history of this country. The expression is used to degree as that of the Scheduled Castes and the denote those classes in the society which could not ad­ Scheduled Tribes is recognized by the various vance socially and educationally because of the taboos provisions of the Constitution itself since they make dif­ and handicaps created by the society in the past or on ference between the Scheduled Castes and the account of geographical or other similar factors. In fact, Scheduled Tribes on the one hand, and other "socially the expression "backward classes" could not be ade­ and educationally backward classes", or "backward quately encompassed in any particular formula and class of the citizens" on the other. What is further, if the hence even Dr. Ambedkar while replying to the debate other backward classes are backward exactly in all on the point stated as follows; respects as the Scheduled Castes and Scheduled Tribes, the President has the power to notify them as "If honourable members understand this posi­ Scheduled Castes and Scheduled Tribes, and they tion that we have to safeguard two things, would not continue to be the other backward classes. namely, the principle of equality of opportunity The nature of their backwardness, however, will have to and at the same time satisfy the demand of be mainly social resulting in their educaional and communities which have not had so far repre­ economic backwardness as that of the Scheduled Castes sentation in the State, then, I am sure they will and the Scheduled Tribes. agree that unless you use some such qualifying phrase as "backward" the exception made in 43. The next important aspect of the question is favour of reservation will ultimately eat up the whether caste can be used for identifyig socially and rule altogether . Nothing of the rule will educationally bakward classes. remain. That I think, if I may say so, is the justification why the E>rafting Committee un­ 44. There is no doubt that no classification can valid­ dertook on its own shoulders the responsibility ly be made on/y on the basis of caste just as it cannot be of introducing the word 'backward' which, I made only on the basis of religion, race, sex, descent, admit, did not originally find a place in the fun­ place of birth or any of them, the same being prohibited damental right in the way in which it was by Article 16(2). What is, however, required to be done passed- by this Assembly. But I think for the purposes of Article 16(4) is not classification but 16 identification. The idcntificalion is of the backward 46. 'Class' is a wider term. 'Caste' is only a species Glasses of t^'tizens, which have, as seen above, to be so­ of the 'class'. The relevant portions of the definations of cially anc3^ therefore, educationally and economically "class" and "caste" given in Shorter Oxford Dictionary backward (for short described as socially and educa­ may be reproduced here: tionally backward). Any factor-whether caste, race, religion, occuption,habitation etc.-which may have been "Class,.-.6. gen. A number of individuals (per­ responsible for the social and educational backward­ sons or things) possessing common attributes ness, woal

Scvcn-judge Bcnch of this Court struck down the clas- dominant one to determine the social and educational sific£3lion made on the basis of castc, racc and religion backwardness. The social and ociucational backward­ for the purposes of admission to educational institu­ ness can be ascertained with the help of factors other tions on the ground that Article 15 did not contain a than castes. The Court further held that if the entire clause such as clause (4) of Article 16. The necessary caste is backward, it should be included in the list of corollary of that view is that with the clause like clause Scheduled Castes. There can be castes whose majority (4) of Article 16, the enumeration of backward classes is socially and educationally backward but minority on tho basis of caste, race or religion would not be bad, may be more advanced than another small sub-caste, and that is exactly what was held by the same Bench in the total number of which is far less than the advanced a decision delivered on the same day in the case of B. minority. In such cases to give benefit to the advanced Vcnkalaramana v. The state of Madras & Ann (AIR section of the majority of the socially and eduicationally (1951) SC 229). This was a case directly under Article 16 backward castes will be unjust to others. (4) unlike Champakam which was under Article 15. in this case, the Communal C.O, of the Madras Govern­ With respect, these observations leave many ment made reservations of posts for Harijans and back­ things unanswered. In the first instance, it is difficult to ward Hindus as well as for other communities, viz., understand as to why, when the entire caste or for that Muslims, Christians, Non-Brahrriin Hindus and Brah­ matter the majority of the caste is socially and educa­ mins. The court upheld the reservations in favour of tionally backward, it could not be classified as a back­ Harijans and backward Hindus holding that those ward class, and why when it is done, the caste cannot reserved posts were so reserved not on the ground of become a class, as has been held in a later decision, i.e. religion , race, caste, etc. but because of the necessity Balram (supra). Secondly, if the entire caste is backward, for makling a provision for reservation of such posts in it is not necessary to include it in the list of Scheduled favour of a backward class of citizens. The Court, how­ castes unless it is contended that the backwardness of ever, struck down the reservations in favour of other the other backward castes must be of the same nature, than Harijans and backward Hindus on the ground that degree and level in all respects as that of the Scheduled it was not possible to say that those classes were back­ castes. The said observations also ignore that the ex­ ward classes. It can be seen fi-om this decision that the pression "backward class of citizens" is wider than the classification of the backwand classes into Harijans and expression "Scheduled castes" as the former expression backward Hindus was unheld by the Court as being includes not only the Scheduled Castes but also other permissible under Article 16 (4) since it was not a clas­ backward classes which may not be as backward as the sification made on the ground of religion race, castc etc. Scheduled Castes. In any case there is no reason why but because the said two groups were backward classes before a backw ard caste is included in the list of of citizens. Scheduled Castes, it should not be entitled to be ac­ cepted as a socially and educationally backward caste. In Balaji it was observed as follows: Thirdly, when a minority of a socially and educationally backward caste is advanced, the remedy lies in denying "Therefore, in dealing with the question as to the benefit of reservation to such minority and not whether any class of citizens is socially back­ neglect the majority. ward or not, it may not be irrevalent to consider the caste of the said group of citizens. In this In Minor P. Rajendran v. State of Madras & Ors. connection, it is, however, necessary to bear in ((1968) 2 SCR 786), it is held that a caste is also a class of mind that the special provision is contemplated citizens, and if the caste as a whole is socially and for classes of citizens and not for individual educationally backward, reservation can be made in citizens as such, and so, though the caste of the favour of such caste on that ground. It is also held that group of citizens may be relevant, its impor­ once the state shows that a particular caste is back­ tance should not be exaggerated. If the clas­ ward, it is for those who challenge it, to disprove it. sification of backw ard classes of citizx?ns w as The propositions laid down in this case are directly con­ based solely on the castc of the citizen, it may trary to the propositions laid down in Chitralekha not always be logical and may perhaps contain (supra). the vice of perpetuating the caste themselves." In P. Sagar (supra) ,it is observed as follows: In K. Chitralekha & Ors. v. State of Mysore ((!964) 6 SCR 368), the majority held that caste and class are not "In the context in which it occurs the expression synonymous. However, it was also held that caste can "class" means a homogenous section of the be one of the relevant factors though not the solo and people grouped together because of certain 18

likenesses or common traits and who are iden­ or religion, and that the term "class' wjthin that tifiable t>y som e common at1ributc>s such as section carries with it the idea of r\umerical status, occuption, residence in a locality, strength so large as could be grouped in a race, reHgion and the like. In determining single hon'iogeneous community". w h eth er 2 particular section forms a class, caste cannot b e excluded altogether. But in the deter­ The decision also quotes with approval from mination of a class a test solely based upon the Paragraph 10, 11 and 13 of Chapter V of the Bachuard caste or comriiunity cannot also be accepted." Classes Commission's Report (Kalelkar Commission Report) where it is observed: In Trilohi Nath & Anr. v. State of ]amtnu & Kjishtnir & O rs. ((1969 )1 SCR 103), it is held: " We tried to avoid caste but we find it difficult to ignore caste in the present prevailing condi­ "The expression 'backward classes' is not used tions. We wish it were easy to dissociate caste as synonymous with 'backward caste' or from social backwardness at the present junc­ 'backward community' . The members of an en­ ture. In moderen times anybody can take to tire caste or community/ may, in the social, any profession. The Brahman taking to tailor­ ,economic and educational scale of values at a ing, does not become a tailor by caste, nor is his given time, be backward and may, on that ac­ social status lowered as a Brahman. A Brahman count b e treated as a backward class, but that is may be a seller of boots and shoes, and yet his not because they are members of a caste or social status is not lowered thereby. Social community, but because they form a class. In backwardness, therefore, is not today due to the its ordinary connotation, the expression 'class' particular profession of a person, but we cannot means a homogenous section of the people escape caste in considering the social back­ grouped together because of certain likenesses wardness in India." or common traits, and who are identifiable by some common attributes such as status, rank, "It is not wrong to assume that social back­ occupation, residence in a locality, race, religion wardness has largely contributed to the educa­ and the like; but for the purpose of Art.16 (4) in tional backwardness of a lar^e number iof so­ determining whether a section forms a class, a cial groups". test solely based on caste, community, race, "All this goes to provethat social backwardness religion, sex, descent, place of birth or is mainly based on racial, tribal, caste, and residence, cannot be adopted, because it would denominational differences". directly offend the Constitution,"

The Court then observes that there is no gainsay­ (Emphasis supplied) ing the fact that there are numerous castes in this With respect, it may be added that when the country which are socially and educationally backward. members of an entire caste are bakward and on that To ignore their existence is to ignore the facts of life. account are treated as a backward class, the expressions However, the court thereafter proceeds also to state "backward caste" and "backward class" become that the Government should not proceed on the basis synonymous. that once a caste is considered as a backward class, it should continue to be a backward class for all time. In M inor A. Periakarujypan etc. v. State of Tamil Such an approach would defeat the very purpose of the Nadu & Ors. etc. (AIR 1971 SC 2303 (1971) 2 SCR 4301, it reservation because once a class reaches a stage of is observed that a caste has always been recognized as a progress which some moderen writers call as "take-off class. The decision refers in this connection to what is stage", the competition is necessary for their future observed in Narayan Vasudev v. Emj?eror (AIR 1940 Bom­ progress. bay 379) which observations arc as follows: In Balr'am, it was held that entire caste can be so­ "In my opinion, the expression 'classes of His cially and educationally backward and in such cir­ Majesty's subjects' in Section 153-A of the code cumstances reservation can be on the basis of castes not is used in rcstrictive sense as denoting a collec­ because they are castes but because they are socially tion of individuals or groups bearing a com­ and educationally backward classes. It was also held mon and exclusive designation and also pos­ that reservastion can also be on the basis of the popula­ sessing common and exclusive characteristics tion of the different castes separately as social and which may be associated with their origin, race educational backward classes. It was further held that 19

if canciidales from social and educational backward cas­ situation, reflecling each other as they do are tes set^ure 50 pcrccnt or more scats on mcril in the the Deus ex-Machina of the social status oc­ general pool, the list of backward classes need not be cupied and the economic pow er wielded by an invalicns. Poverty by itself is not the deter­ should be anathema and today we find that mining factors of social backwardness. Poverty practitioner of other religious faiths and Hindu is relevant in the context of social backw'arde- dissentients are sometimes as rigid adherents ness. The Commission found that the lower in­ to the system of caste as the conservative Hin­ come group constitutes socially and education­ dus. We find Christian Harijans, Christian ally backward classes. The basis of the reserva­ Madras, Christian Reddys, Christian Kammas, tion is not income but social and educational Mujbi Sikhs, etc, etc. In Andhra Pradesh there backwardness determined on the basis of is a community known as Pinjaras or relevant criteria. If any classification of back­ Dudekulas (Known in the North as 'Rui Pinjane ward classes of citizens is based solely on the Wala': Professional cotton-beaters) who are caste of the citizen it will pei-petuate the vice of really Muslims but arc treated in rural society, caste system. Again, if the classification is bsed for all practical purposes, as a Hindu caste. solely on poverty it will not be logical." Several other instances maybe given,"

In Vasanth Kumar (supra), Chinnappa Reddy J. Venkataramiah, J, (as he then was) in the same stated as follows: decision observed as follows:

"Any view of the caste system, class or cursory, "An examination of the question in the back­ will at once reveal the firm links which the ground of the Indian social conditions shows caste system has with economic power. Land that the expression 'backward classes' used in and learning, two of the primary sources of the Constitution referred only to those who economic power in India, have till recently been were born in particular castes or who belonged the monopoly of the superior castes. Oc­ to particular races or tribes or religious cupational skills were practised by the middle minorities which were backward." castes and in the economic system prevailing till now they could rank in the system next 49. It will also be useful to note the trend in the only to the castes constituting the landed and thinking of some of the learned Judges of the U.S. learned gentry. The lowest in the hierarchy Supreme Court on measures designed to redress the ra­ were those who were assigned the meanest cial inbalance in that country in various fields. In tasks, the out castes who wielded no economic Regents of the Univeisity of California (supra), Marshall, J. power. The position of a caste in rural society is expressed the view that in the light of the history of more often than not mirrored in the economic discrimination and its devastating impact on the lives of power wielded by it and vice versa. Social Negroes, bringing the Negroes into the mainstream of hierarchy and economic position exhibit an un- American life should be a State interest of the highest disputable mutuality. The lower the caste, the order, and that neither the history of the Fourteenth poorcr its members. The poorer the members Amendment nor past Supreme Court decisions sup­ of a caste lower the caste. Caste and economic ported the conclusion that a University could not 20

remedy the cumulative effects of society's discrimina­ torically disadvantaged minorities, even when tion b\/ consideration to race in an effort to increase such programs explicitly take race into account the numfcx^r and percentage of Negro doctors. He also finds direct support in our cases constucing hold that affirmative action programs of the type used congressional legislation designed to overcome by the iJniversity (to reserve seats for the Negroes) the present effects of the past discrimination." should not be held to be unconstitutional. In Fullilove (supra) where the provision in the Blackmun, J. observed that it would be impossible Public Works Employment Act, 1977 requiring that at to arrange an affirmative action programme in a racially least 10 percent of the Federal funds granted for local neutral ror/yand have it successful. public works projects, should be used by the state or the local gantee to procure services or supplies from busi­ Brennan, J. observed that the claim that the law nesses owned by minority groups members, was chal- must be 'colour-blind' is more an aspiration rather than langed. Chief Justice Burger, speaking for himself. a description of reality and that any claim that the use White and Powell, JJ. upheld the view expressed in the of racial criteria is barred by the plain language of the earlier decisions that if the race was the consideration for Status must fail in light of the remedial purpose of Title earlier discrimination in remedial process, steps will almost VI (of the Civil Rights Act, 1964) and its legislative his­ invariably require to be based on racial factors and any other tory. On the contrary, he observed, that the prior approach would freeze the status quo which is the very target decisions o f the Court strongly suggested that Title VI of all remedies to correct the imbalance introduced by the did not prohibit the remedial use of the race where such past racial discriminatory measures...Is 1 action is constiutionally permissible. In this connec­ tion, it will be worthwhile to quote two passages from (All emphasis supplied) the learned Judge's opinion in that case. While dealing with equal protection clause in the Fourteenth A 50. It is further not correct to say that the caste sys­ mend men t, the learned Judge observed as follows: tem is prevalent only among the Hindus, and other religions are free from it. Jains have never considered "The assertion of human equality is closely as­ themselves as apart frojn Hindus. For all practical sociated with the proposition that differences in purposes and from all counts, there are no socially and colour or creed, birth or status, are neither sig­ educationally backward classes in the Jain community nificant nor relevant to the way in which per­ for those who embraced it mostly belonged to the son should be treated. Nonetheless, the posi­ higher castes. As regards Buddhists, if we exclude tion that such factors must be "constitutionally those who embraced Buddhism along with Dr. Ambed- an irrelevance" summed up by tlie shorthand kar in 1955, the population of Buddhists is negligible. phrase "our Constitution is colour blind" lias never If, however, we include the new converts who have been adopted by this Court as the projjci- meaning of come to be known as Nav-Buddhists, admittedly almost the Equal Protection Cause. Indeed, we have ex­ all of them are from the Scheduled castes. In fact, in pressly rejected this proposition on a number some States, they were sought to be excluded from the of occasions. Our cases have always implied list of Scheduled Castes and denied the benefit of reser­ that an "overriding statutory purpose" could be vations on the ground that they had no longer remained found that would justify racial classifica­ the lower castes among the Hindus qualifying to be tions....More recently...this Court unanimously included among the Scheduled Castes. On account of reversed the Georgia Supreme Court which had their agitation, this perverse reasoning was set right held that a desegregation plan voluntarily and to-day the Nav-Buddhists continue to get the adopted by a local school board which assigned benefit of reservation on the ground that their low students on the basis of race, was per seinvalid status in society as the backward classes did not change because it was not colour blind. We conclude, with the change of their religion. As regards Sikhs, therefore, that racial classification are not per se there is no doubt that the Sikh religion does not recog­ invalid under the Fourteenth Amendment. Ac­ nise caste system. It was in fact a revolt against it. cordingly, we turn to the problem of articulat­ However, the existence of Mazhabis, Kabirpanthis, ing what our role should be in reviewing state Ramdasias, Baurias, Sareras and Sikligars and the action that expressly classifies by race." demand of the leaders of the Sikhs themselves to treat them as Scheduled Castes could not be ignored and "The conclusion that state educational institu­ from the begining they have been notified as a tions may constitutionally adopt admissioas Scheduled Caste (See: pp. 768-772 of V('l. 1 and p. 594 of programs designed to avoid exclusion of his­ Vol. IV of the Framing of India's Constitution- Ed. B. 21

Shiv«a Rao). As far as Islam is conccrnc’d, Islam also cial as well as trade matters and...marriag, does not recognise castes or caste system. Uowever, withpeople of other communities is one of the among the Muslims, in fact there are Ashrafs and Ajlafs, offences of which the governing body takes i.e., high born and low born. The Census Report of 1901 cognizance. The result is that these gmups are of the Province of Bengal records the following facts often as strictly endogamous as Hindu castes. regarding the Muslims of the then Pn.:)vince of Bengal: The prohibition on inter-marriage extends to higher as well as to lower castes, and a Dhuma, "the conventional division of the Mahomedans for example, may marry no one but a Dhuma. into four tribes- Sheikh, Saiad, Moghul and If this rule is transgressed , the offender is at Pathan- has very little application to this once hauled up before the panchayat and rrovince (Bengal). The Mahomedans themsel­ ejected ignominiously from his community. A ves recognise two main social divisions, (l)Ash- member of one such group cannot ordinarily raf or Sharaf and (2) Ajlaf. Ashraf means gain admission to another, and he retains the 'noble' and includes all undoubted descen­ designation of the community in which he was dants of foreigners and converts from high bom even if he abandoas its distinctive occupa­ caste Hindus. All other Mahomedans including tion and takes to other means of livelihood... the occupational groups and all converts of thousands of Jalahas are butchers, yet they are lower ranks, are known by the contemptuous still known as Jolahas." terms, 'Ajlaf', 'Wretches' or 'mean people' : they are also called Kamina or Itar, 'base' or 'Rasil, a (See:pp. 218-220 of Pakisthan or Partition of India by Dr. B.R. Ambedkar.) corruption of Rizal, 'worthle.ss'. In some places a third class , called Arzal or 'lowest of all', is Similar facts regarding the then other Provinces added. With them no other Mahomedan would could be gathered from their respective Census Reports. associate and they are forbidden to enter the At present there are many social groups among Mus­ mosque to use the public burial ground. lims which are included in the list of Scheduled Castes in some states. For example, in Tamil Nadu, Labbais Within these groups there (sic. ) castes with so­ including Rawthars and Marakayars are in the list of cial precedence of exactly the same nature as Scheduled Castes. This shows that the Muslims in one finds among the Hindus. India have not remained immune from the same social 1. Ashrat or better class Mahomedans. evils as are prevalent among the Hindus.

(i) Salads, (ii) Sheikhs, (iii) Pathans, (iv) Though Christianity also does not recognise Moghul (v) Mallik, (vi) Mirza. caste system, there are upper and lower castes among Christians. In Goa, for example, there are upper caste 2. Ajlaf or lower class Mahomedans. Catholic brahmins who do not marry Christians belong­ ing to the lower castes. In many churches, the low caste (i) Cultivating Sheikhs , and other who were Christians have to sit apart from the high caste Chris­ originally Hindus but who do not belong to tians. There are constant bickerings between Goankars any functional groups, and have not gained ad­ and Gawdes who form a clear cut division in Goan mittance to the Ashrat Community e.g. Pirali Christian society. In Andhra Pradesh there arc Christian and Thakrai, (ii) Darzi, Jolaha, Fakir and Harijans, Christian Madars, Christian Reddys, Christian Rangrez, (iii) Barhi, Bhathiara , chik, Churihar, Kammas etc. In Tamil Nadu, converts to Christianity Dai, Dhawa, Dhunia, Gaddi, Kala, Kasai, Kula, from Scheduled Castes- Latin Cathollos, Christian Kunjara, Lahcri, Mahifarosh, Mallah, Naliya, Shanars, Christian Nadars and Christian Gramani are in Nikari, (iv) Adbad, Bako, Bediya, Bhat, Cham- the list of Scheduled Castes. Such instances arc many ba, Dafali, Dhobi, Hajjam, Mucho, Nagarchi, and vary from region to region. Nat, Panwaria, Madaria, Tuntia. The division of the society even among the other 3. Arzal or degraded class.Bhanar, Halalkhor, religious groups in this country between the high and Hirja, Kashi, Lalbegi, Mangta, Mehtar. low castes is only to be expected. Almost all followers The Census Superintendent mentions another of the non-Hindu religions except those of the features of the Muslim social system, namely, the Zoroastrianism, arc converts from Hindu rcligion, and prevalence of the 'Panchayat system' He stated: in the new rcligion they carried with them their castes as well. It is unnatural to expect that the social 'The authority of the Panchayat extends to so­ prejudices and prc biases, and the notions and feelings 22

of .^‘Jpcriorily and inferiority, nurlured for centuries ever, is not confined to the aforesaid classes only but togCthQr^ would disappear by a mere change of religion. also includes other backward classcs as well, whether they are socially and educationaly backward or not and 51. The castes wore inextricably associated with oc­ whether they arc adequately n?presented in the services cupations and the low and the mean occupations or not. Whal is further, the exprcssion "weaker sec­ belonged to the lower castes. In the new religion, along tions” of the people does not necessarily refer to a group with the castes, most of the converts carried their oc­ or a class. The expression can als« take within its com­ cupations as well. The backward classes among the pass individuals v^ho constitute weaker sections or Hindus and non-Hindus can, therefore, easily be iden­ weaker parts of the society. This weakness may be on tified by their occupations also. Whether, therefore, the account of factors other than past social and educational backward classes are identified on the basis of castes or backwardness. The backwardness again may be on ac­ occupations, the result would be the same. For, it will count of poverty alone or on account of the present im­ lead to the identification of the same collectivities or poverishment arising out of physical or social hand­ communities. The social groups following different oc­ icaps. The instances of such weaker sections other than cupations are known among Hindus by the castes SCs/STs and socially and educationally backward clas­ named after the occupations, and among non- Hindus ses may be varied, viz., flood-earthquake-cyclone-fire- by occupation names. Hence for identifying the back­ famine and project affected persons, war and riot torn ward classes among the non-Hindus, their occupations persons, physically handicapped persons, those can furnish a valid test. It is for this reason that both without any or adequate means of livelihood, those Articles 15 (4) and 16 (4) do not use the woiti 'caste' and who live below the poverty line, slum dwellers etc. use the word 'class' which can take within its fold both Hence the expression "weaker scctior\s" of the people is the caste and occupational groups among the Hindus wider than the expression "backward class" of citizens and non-Hindus. or "socially and educationally backward classes" and "SCs/STs". It connotes all sections of the society who 52. The next issue arising out of this question is are rendered weaker due to various causes. Article 46 whether economic criterion by itself would identify the is aimed at promoting their educational and economic backward classes under Article 16(4) and whether the interests and protecting them froni social injustice and expression "backward class of citizens" in the said Ar­ exploitation. This obligation cast on the State is con­ ticle would include "weaker sections of the people" sistent both with the"Preamble as well as Article 38 mentioned in Article 46. of the Constitution,

53. Article 46 enjoins upon the state to promote with 54. However, the provisions of Article 46 should not special care, the educational and economic interests of be confused with those of Article 16 (4) and hence the the "weaker sections" of the people , and, in particular, expression "weaker sections of the people" in Article 46 of the SCs/STs, and to protect them from social injustice should not be mixed up with the expression "backward and all forms of exploitation. The expression"weaker class of citizens" under Article 16 (4). The purpose of sections" of the people is obviously wider than the ex­ Article 16(4) is limited. It is to give adequate repre­ pression "backward class" of citizens in Article 16 (4) sentation in the services of the State to that class which which is only a part of the weaker sections. As has been has no such representation. Hence, Article 16 (4) carves discussed above, the expression "backward class" of out a particular class of people and not individuals citizens is used there in a particular context which is from the "weaker sections" and the class it carves out is germane to the reservations in the services under the the one which does not have adequate representation in State for which that Article has been enacted. It has also the services under the state. The concept of "weaker been pointed out that in that context, read with Article sections" in Article 46 has no such limitation. In the 15 (4) and 340, the said expression means only those first instance, the individuals belonging to the weaker classes which are socially backward and whose educa­ sections may not form a class and they may be weaker tional and economic backwardness is on account of as individuals only. Secondly, their weakness may b/ot their social backwardness and which are not adequately be the result of past social and educational backward­ represented in the services under the State. Hence, the ness or discrimination. Thirdly, even if they belong to expression "backward class" of citizens in Article 16 (4) an identifiable class but that class is repesented in the does not comprise all the weaker sections of the people, services of the State adequately, as individuals forming but only those which are socially and, therefore, educa­ weaker section, they may be entitled to the benefit of tionally and economically backward, and which are in­ the measures taken under Article 46, but not to the adequately represented in the services. The expression reservations under Article 16 (4), ThuS; not only the "weaker sections of the people" used in Article 46, how­ concept of "weaker sections" under /\rticle 46 is dif- 23

fercnl from (hat of the "backwaixJ class" of cili/ens in the backwardness which is bolii rous - Article 16 (4), but the purpose of the two is also dif­ sequence of non-representation in { ^ j ^ ferent. One is for tho limited purpose of the rcscrvation the country. All olhcr kinds of and hence suffers from limilalions, while the other is relevant for (he purpose of the said Artick' ^ for all purposes under Articic 46, which purposes are backwaixinoss has to bo a backwardri(>.s ' other than reservation under Article 16 (4). While those class and not of some individuals bck/V^^*^ entitled to benefits under Article 16 (4) may also be en­ class, which individuals may be econom ica'lfvor oduc'r titled to avail of the measures taken under Article 46,, tionally backward, but the class to whirl-. the corvverse is not true. If this is borne in mind, the may be socially forward and adequatolv <2 ong reasons why mere poverty or economic consideration than adequately represented in the scrvicel cannot be a criterion for identifying backward classes of reservation u n L Article 16 (4) -rn orf T Citizens under Article 16(4) would be more clear. To dividuals but to a class which must br> Kr ^ , . , , , . , . Doth backward the consideration of that aspect we may now turn. and madequately represented m the services Si.rh in dividuals would not be boneficiaripQ 55. Economic backwardness is the bane of the under Article 76 (4), It is further difnru j , majority of the people in this country. There are poor a "class" (not individuals) which is socialK ^^ross , j u . • !>ocialIy and educa­ sections in all the castes and communities. Poverty tionally advanced but is economically backward or runs across all barriers. The nature and degree of which is not adequately represented in the services of economic backwandness and its causes and effects, State on account ot ,.s economic backwardness however, vary from section to section of the populace. Hence mere economic or mere educational backwanj: Even the poor among the higher castes are socially as ness which ,s not the result of social backwardness, can- superior to the lower castes as the rich among the not be a criterion of backwardness for Article 16 (4 ) higher castes. Their economic backwardness is not on account of social backwardness. The educational back­ 56. Tha't only economic backwardne^;*: , w c ,u n not in the wardness of some individuals among them may be on contemplation of the Constilution is made further clear account of their poverty in which case economic props by the fact that at the lime of the Firvf a j .1 ^ u- 1 j Am endm ent to alone may enable them to gain an equal capacity to the Constitution which added clause r4\ a i -ic r r- .-I f c .u Kx Article 15 of compete with others. On the other hand, those who are the Constitution, one of the Members, Prof KT Shah socially backward such as the lower castes or occupa­ wanted the elimination of the word Vllc-o • j • tional groups, are also educationally backward on ac­ addition of the word, "economically" to '"rr r count of their social backwardness, their economic the term "backwani'classes". This Am" . ^ n • x/t- • . M . ^'^^riclment was not backwardness being the consequence of both their so­ accepted. I>r|me Minister Nehru him.self stated that the cial and educational backwardness. Their educational addition of the word economically" , backwardness is not on account of their econom ic back­ 'he Article at variance with that of Article 340. wardness alone. It is mainly on account of their social He added that socially ^ much wider term including backwardness. Hence mere economic aid will not many things and certainly including "economically® enable them to compete with others and particularly This shows that economic consideration alone as the with those who are socially advanced. Their social basis of backwardness was not only not intended but backwardness is the cause and not the consequence positively discarded, either of their economic or educational backwardness. 57. The reasons for discarding econo,v^.v • It is necessaiy to bear this vital distinction in mind to I I t u I j ^ '-‘“'Jnomic cnterion as the sole test of backwardness are ohvir^,.o tc understand the true import of the expression "back­ I • j X 1 41- ^ovious. If poverty ward class of citizens" in Article 16 (4), If it is m ere alone >s made the test, the poor from all castes, com­ eductional backwardness or mere economic backward­ munities, collectivtties and sections would compete for ness that was intended to be specially catered to, there the reserved quota. In su * circumstances, the result was no need to make a provision for reservation in would be obvious, namely, those who belong to socially employment in the servicc*s under theS^ate. That could and educationally advanced sections would capture a« be taken care of under Articles 15 (4), 38 and 46. The the posts in ‘he quota^ TWs would leave the socially provision for reservation in appointments under Article and educationally backward classes high and dry al­ 16 (4) is not aimed at economic upliftment or alleviation though they are not at all represented or are inade­ of poverty. Article 16(4) is specifically designed to give quately rep^ented in the services, and the socially and a due share In the State power to those who have educationally advanced classcs are adequately or more remained out of it mainly on account of their social and, than adequately represented in the services It would thereon?, educaional and economic backwardness. The thus result m defeating the very object of the reserva­ backwardness that is contemplated by Article 16 (4) is tions in services, under Article 16 (4), „ would, also 24

pn)vide for iho socially and oducationaily advanced tions, an untenable siluaiion tnay aiise because classes stalulory rcsen'ations in the services in addition even in sectoi-s which are ivcognised as socially to their Iradilional but non-slalutory cent per cent and educationally advanced therc are lai^^e reservations. It will thus perpetuate the imbalance, and pockets of poverty. In (his country except for a the inad(!quate representation of the backward classes small percentage of the population the people in the services. It is naive to expect that the poor from arc generally poor sonie being more poor, the socially and educationally backward classes would othei'S less poor. Therefore, w h e n a social in­ be able to compete on equal terms with the poor from vestigator tries to identify socially and educa­ the socially and educationally advanced classes. There tionally backward classes, he may do it with may be an equality of opportunity for the poor from confidence that they are bound to be poor. His both the socially advanced and backward classes. chief concern is, therefore, to determine There will, however, be no equality of results since the whether the class or group is socially and competing capacity of the two is unequal. The educationally backward. Though the two economic criterion will thus lead, in effect, to the vir­ words 'socially' and 'educationally' are used tual deletion of Article 16 (4) from the Constitution. cumulatively for the purpose of describing the backward class, one m ay find th at if a class as a 58. We may refer to some decisions of this court on whole is educationally advanced, it is generally this point. also socially advanced because of the reforma­ tive effect of education on that class. The words In Chitralckha, which was a case under Article 15 "advanced" and "backward" arc only relative (4), it is observed: terms-there being several layers or strata of classes, hovering between "advanced" and "It is, theix?fore, m anifest that the Governm ent "backward" and the difficult task is which class as a temporary measurc, pending an elaborate can be recognised out of these several layei-s as study, has taken into consideration only the being socially and educationally backward". economic condition and occupation of the family concerned as the criteria for backward classes It will be observed from the above that poverty as within the meaning of Articlc 15 (4) of the Con­ the sole test of backwardne.ss for Article 16 (4) was dis­ stitution." carded by this Court in the said decision. On the other hand, it is emphasis^'d there that the poverty in ques­ (Emphasis supplied) tion should be the result of social and educational back­ w ardness. The Supreme court upheld the said classification. However, it must be noted that the classification there 59. This point has elaborately been dealt with by was not only on the ground of economic condition but Chinnappa Reddy, J. in Vasant Kumar; where the learned was also based on the occupation of the family con­ Judge has taken pains to point out that although pover­ cerned. ty is the dominant characteristic of all backwardness, it is not the cause of all backwardness: Parimoo was a case under Article 16 (4). On the test of backwardness, the court has observed there as "We, therefore, see that everyone of the three follows: dim ensions propounded by VVebar is intimately and inextricably connected with economic posi­ "It is not mei'cly the educational backwardness tion. However, we look at the question of which makes a class of citizens backward; the 'backwardness', whether from the angle of class identified as a class as above must be both class, status or power, we find the economic educationally and socially backward. In India factor at the bottom of it all and we find pover­ social and educational backwardness is further ty, the culprit-cause and the dominant charac­ associated with economic backwardness and it teristic. Poverty, the economic factor brands all is observed in Balaji's case referred to above that backwaixJness jusL as the errcct posture brands backwardness, socially and educationally is ul­ the homosapiens and distinguishes him from timately and primarily due to poverty. But if all other animals, in the eyes of the beholder poverty is the exclusive test, a very lai^e from Mars. But, whether his racial stock is proportion of the population in India would Caucasian, Mongoloid, Negroid etc. further in­ have to be regarded as socially and education­ vestigation will have to be made. So too the ally backward, and if reservations are made further question of social and educational only on the ground of economic considera­ 2S

backwardness requires liirtiicr scruliny. !ii While those falling under clause (l) from other than jnd ia, tlic m atlcr is furih(>r aggravated, aMnpii- the backward classes, will continue? lo enjoy the resei- c^^\C^ and pitilessly tyrannised by Die ubiqui- vations for ever, the backward classes can get the tou^^ caste sysleni, a unique and devastating benefit of the reservation under clause (4) only so long syst(-'m of gradation and degradation wliich has as they are not adequately repix?sented in the ser­ divided the entire Indian and particularly vices. What is more, those entering the services Hindu Society horizontally into such distinct under clause (1) may belong to classes which are layers as to be destructive of mobility, a system adequately or more than adequately represented in which has penetrated and corrupted the mind the services. The reservations for them alone under Ar­ and soul of every Indian citizen." ticle 16 (1) would virtually defeat the purpose of Article 16 (4) and would be contrary to it. No different 60. It is, therefore, clear that economic criterion by result will, further, ensue even if the resei*vations are itself will not identify the backward classes under Ar­ kept for all the classes since as pointed out above, all the ticle 16 (4). The economic backwardness of the back­ seats will be captured only by the socially and educa­ ward classes under Article 16 (4) has to be on account tionally advanced classes. The two clauses of the Ar­ of their social and educational backwardness. ticle have to be read consistently with each other so as to lead to harmonious results. Hence, so long as the Question III: socially backward classes and the effects of their social backw'atxiness continue to exist, the reservations in ser­ If economic criterion by itself could not con­ vices on economic criterion alone would be impermis­ stitute a Backward Class under Article 16 (4), sible either under clause (4) or clause (1) of Article 16. whether reservation of posts in services under the state, based- exclusively on economic 63. Hence no reservation of posts in services under criterion w'ould be covered by Article 16 (1) of the State, based exclusively on economic criterion the Constitution? would be valid under clause (1) of Article 16 of the Constitution. 61. While discussing Question No. 1, it has been pointed out that so far as "backward classes" are con­ Question IV: cerned, clause (4) of Article 16 is exhaustive of resera- tions meant for them. It has further been pointed out under Question No. 1! that the only "backwaixJ class" Can the extent of reservation of posts in the ser­ for which reservations are provided under the said vices under the State under Article 16 (4) or, if clause is the socially backward class whose educa­ permitted under Article 16 (1) and 16 (4)’ tional and economic backwardness is on account of together, exceed 50% of the posts in a cadre or the social backw^ardness. A class which is not so­ Service under the State or exceed 50% of ap­ cially and educationally backward though economical­ pointments in a cadre or service in any par- . ly or even educationally backward is not a backward ticular year and can such extent of reservation class for the purposes of the said clause. What follows be determined without determining the inade­ from these two conclusions is that reservations in posts quacy of representation of each class in the dif­ cannot be made in favour of any other class under the ferent categories and grades of Services under said clause. Further, the purpose of keeping reserva­ the State? tions even in favour of the socially and educationally backward classes under clause (4), is not to alleviate 64. It has already been pointed out earlier that clause poverty but to give it an adequate share in power. (4) of Article 16 is not an exception to clause (1) thereof. Even assum ing that it is an exception, there is no 62. Clause (1) of Article 16 may permit classification numerical relationship between a rule and its excep­ on economic criterion. The purpose of such classifica­ tion, and their respective scope depends upon the areas tion, however, can only be to alleviate poverty or relieve and situations they cover. How lai^e the area of the unemployement. If this is so, no individual or section exception will be, will of course, depend upon the cir­ of the society satisfying the criterion can be denied its cumstances in each case. Hence, legally ,it cannot be benefits -and particularly the backward classes who are insisted that the exception will cover not more than 50 more in need of it. If, therefore, the backward classes percent of the area covered by the rule. Whether, within the meaning of clause (4) are excluded from the therefore, clause (4) is held as an exception to clause reservations kept on economic criterion under clause (1) or is treated as a more emphatic way of stating (1), it will amount to discrimination. Further, the ob­ what is obvious under the said clause, has no bearing jects of reservations under the two clauses are different. on the percentage of reservations to be kept under it 26

As Justice Hedge has stated in Stnie of Punjab v. lliralal quote what Dr. Ambedkar had lo say with regard to the & Ors. (1971) 3 SCR 267 at 272), ” the length of the leap extent of reservations contemplated under Article 16 (4) to be pr^Jvided depends upon the gap to be covered". (Constiuent Assembly Debates, Vol. 7 (1948-49) pp.701- In Article 16 (4) itself, there is no indication of the 02): extent of reservation that can be made in favour of the b ack w ard classes. However, the object of resen'ation, "As 1 said, the Drafting Committee had to viz., to ensure adequacy of representation, mentioned produce a formula which would reconcile these there, serves as a guide for the percentage of three points of view, firstly, that there shall be reservations to be kept. Broadly speaking, the adequacy equality of opportunity, secondly that there of representation in the services will have to be shall be reservations in favour of certain com­ proportionate to the proportion of the backward classes munities which have not so far had a "proper in the total population. In this connection, a reference look-in' so to say into the administration. If may be made to the U.S. decision in Fullilove where 10% honourable Members will bear these facts in the of the business was reserved for the blacks, their mind-the three principles, we had lo reconcile, population being roughly 10 percent of the total -they will see that no better formula could be population. If the reservation is to be on the basis of the produced than the one that is embodied in sub­ proportion of the population in this country, the clause (3) of article 10 of the Constitution; they backward classes being no less than 77-1/2 percent will find that the view of those who believe (socially and educationally backward classes and and hold that there shall be equality of oppor­ Scheduled Castes and Scheduled Tribes taken tunity, has been embodied in sub-clause (1) of together) the total reservation will have to be to that Article 10. It is a generic principle. At the sam e extent. It is not disputed that at present the lime, as I said, we had to reconcile this formula reservations for the SCs/STs are roughly in proportion with the demand made by certain communities to their total population. that the administration which has now-for his­ torical reasons-been controlled by one com­ munity or a few communities that situation 65. The adequacy of representation in administra­ should disappear and that the others also must tion is further to be determined on the basis of repre­ have an opportunity of getting into the public sentation at all levels or in all posts in the adm inistra­ services. Supposing, for instance, we were to tion. It is’ only a question of numerical strength in the concede in full the demand of those com­ administration as a whole. It may happen that at the munities who have not been so far employed in higher level there may be more representation for a the public services to the fullest extent, what class than at the lower level in terms of its population- would rcally happen is, we shall be completely ratio. This mostly happens with all the advanced clas­ destroying the first proposition upon which we ses. In that cases, it cannot be said that the class in are all agreed, namely, that there shall be an question is not represented adequately merely because equality of opportunity. Let me give an illustra­ the total representation is not numerically in proportion tion. Supposing, for instance, reservations were t9 the population-ratio. On the other hand, it may hap­ made for a community or a collection of com­ pen, as it does so far as the representation of the back­ munities, the total of which came to something ward classes is concerned, at the lower rungs they may like 70 percent of the total posts under the State be represented adequately or more than adequately. Yet and only 30 percent are retained as the un­ at the higher rungs, their presence may be next to nil. reserved. Could anybody say that the reseiva- In such cases, again, it cannot be said that the class is tion of 30 percent as open to general competi­ represented adequately. To satisfy the test of adequacy, tion would be satisfactory from the point of therefore, what is necessary is an effective repre­ view of giving effect to the first principle, sentation or effective voice in the administration, and namely, that there shall be equality of oppor­ not so much the numerical presence. It is instructive to tunity? It cannot be in my judgment. Therefore note in this connection that Article 16 (4) speaks of "ade­ the seats to be reserved, if the reservation is quate" and not proportionate representation. The prac­ to be consistent with sub-clause (1) of Article tical question, therefore, is of the manner in which the 10 must be confined to a minority of seats. It adequate representation should be secured. Whatever is then only that the first principle could find the method adopted, it has also to be, consistent with its place in the Constitution and effective in the maintenance of the efficency of the administration. operation."

66. In this connection, it will first be worthwhile to 67. Article 10 (1) and 10 (3) of the Draft Constiution 27

corresponded to Article 16 (i) and 16 (4) of the Constiu- did not see uniform acceptance in ali the decisions that lion. Wheri we rcaiise that these are the observations of foiiowed. The case u'hich immecjlately foilowod- the Chairrnan of the Drafting Committee, the I^w Devndasan-appVwd this rule to the "Carry forvv?ard rule" Member o f the Government and the champion of the and struck down the sam e in its entirety, since 65 per­ backwarxi classes, it should give us an insight into the cent of the vacancies for the year in question, came to mind of the framers of the Constitution on the subject. be reserved for the SCs/STs by virtue o f that rule. V\^ith It is true tKiat the said observations cannot be regarded respect, even on the application of the 50 percent rule, it as decisive on the point. The observations probably was not necessar)^ to strike down the "carry foward also proceeded on the assumption that clause (4) of Ar­ rule " itself. All that was necessary was to confine the ticle 16 was an exception to its clause (1), and had a carry forward vacancies for the year in question to 50 numerical relationship with the rule. Whatever the case percent. Be that as it may. In Thomas, the correctness of may be, the observations do give a perceptive and vi­ 50 per cent rule was questioned by Fazal Ali, J. who able guidance to the policy that should be followed in stated that although clause (4) of Article 16 does not keeping reservations, and in particular on the extent of fix any limit on reservations, the same being part reservations at any particular point of time. There is, of Article 16, the State cannot be allowed to indulge therefore, much force in the contention that at least as a in excessive reservation so as to defeat the policy of guide to the policy on the subject, the observations can­ Article 16 (1). The learned judge, however, added that not be ignored. as to what would be a suitable reservation within per­ missible limits w\\\ d ep en d on the facts and circumstan­ 68. Although the vievx? expressed in Balaji and Dev- ces of each case and no hard and fast rule can be laid dasan (supra), that the reservation should not exceed 50 down nor can this matter be reduced to a mathe­ percent does not refer to Dr. Ambedkar's aforesaid ob­ matical formula so as to be adhered to in all cases. The servations and is, therefore, not based on it, and is learned Judge then went on to say that although the based on other considerations, it cannot be said that it is decided cases till that time, had laid down that the per­ not in consonance with the spirit, if not the letter, of the centage of reservation should not exceed 50, it was a provisions- rule of caution and did not exhaust all categories. He then gave an illustration of a State in which backward 69. It is seen earlier that 50 percent rule was classes constituted 80 percent of the total population, propounded in Balaji. The rule was propounded in the and stated that in such cases, reserv'^ation of 80 percent context of Art. 15 (4), but, while, propounding it, this of the jobs for them, can be justified. The learned Judge Court stated among other things, as follows; justified reservation to the said extent on the ground that the dominant object of the provision of Article 16 "...A special pn)vision contemplated by Art. 15 (4) is to take steps to make inadequate repre­ (4) like reservation of posts and appointments sentation of backward classes adequate. Of the other contemplated by Art. 16 (4) must be within Teamed Judges constituting the Bench, Krishna Iyer J. reasonable limits. The interests of weaker se- agreed with Fazal Ali, J. and stated that the arithmetical tions of society which are a first chaise on limit of 50 percent in one year set by earlier rulings the States and the Centre have to be adjusted cannot "perhaps he pressed too far". He added that over­ with the interests of the community as a whole. representation in a department does not depend on The adjustment of these competing claims is recruitment in a particular year but on the total strength undoubtedly a difficult matter, but if under the of the cadre. guise of making a special provision, a state reserves practically all the seats available in all (Emphasis supplied). the colleges, that clearly would be subverting the object of Art. 15 (4). In this matter again, we In Vasant Kumar Chinnappa Reddy, J. held that arc reluctant to say definitely what would be a Thomas had undone the 50 per cent rule laid proper provision to make. Speaking generally down in the earlier cases, while Venkataramiah, J. and in a broad v^ay a special provision should disagreed with the learned Judge on that point. be less than 50%; how much less than 50%would depend upon the relevant prevailing 71. It does not appear further that Justice Iyer's sup­ circumstances in each case." port to Justice Fazal Ali's view in Thomas , was un­ qualified or remained unchanged. F o r in Akhil Bharatiya 70. refercnce to Article 16 (4) there, therefore, un- Soshit Karamchari Sangh (Raihoay) v. Union ofhidia&Ors. *^istakably shows that it is presumed that the same rule ((1981) 2 SCR 1985), after referring to Balaji and 'vill apply to Article 16(4) as well. This rule, however, Devadasan, he stated as follows: 28

'*All (hat we need say is that the Railway Board the backward classes. take care to issue instructions to sec that in no year shall SC & ST candidates be actulaly 73. While deciding upon a particular percentage of appoinled to substantially morc than 50 per reseivations, what should further not be foi^otten is cc'nt of the promotional posts. Some excess will that between the backward and the forward classc’s, not affect as mathematical pivcision is different there exists a sizeable section of the population, who ir> human affaii"s, but substantial excess will being socially not backward are not qualified to be con­ void the selection.Subject to this rider or condi­ sidered as backward. At the same time they have no tion that the 'carry forwaixd' rule shall not result, capacity to compete with the forwards being educa­ in any given year, in the selection or appoin- tionally and economically not as advanced. Most of mcnts of SC & ST candidates considerably in them have only the present generation acquaintance e?

74. In this connection, one more fact needs to be con- 72. It is necessary in this connection, to point out that not only Article 16 (4) but for that matter. Article 335 sidere'd from a realistic angle. A mechanical approach in also does not speak of giving proportional repre­ keeping reservations in all fields and at all levels of ad- sentation to the backward classes and SCs/STs respec­ ministation and that too at a uniform percentage is un­ tively. Article 16 (4), as repeatedly pointed out earlier, in realistic. There is no reason why the authorities con­ terms, speak of "adequate" representation to the back­ cerned should not apply their mind and evolve a realis­ tic policy in this behalf. There are fields and levels of ward classes, while Article 335 speaks of the "claims" of the members of the SCs/STs. However, it cannot be dis­ administration whe^^ either there may be no candidates from backward classes available or may not be available puted that whether it is the appointments of SCs/STs or other backward classes, both are to be made consistent­ in adequate number. In such cases, either no reserva­ ly with the maintenance of the efficiency in administra­ tions should be kept or reservations kept should be at tion. Since the reservations contemplated under both an appropriate percentage. On the other hand, in fields and at levels where the candidates from the backward the Articles include also the giving of concessions in classes are* available in suitable number, the maximum marks, exemptions etc., it is legitimate to presume that the Consititution-framers being aware of the level of permissible reservations can be kept. The adjustment of the reservations and their percentages, field and grade- backwardness, did envisage that the inadequacy in the representation of the backward classes cannot be made wise as well as from time to time, as per availability of the candidates from the backward classes, is not only up in one generation consistently with the maintenance of efficiency in the administraion. In fact, as pointed out implicit in the consitutional provisions but is also war­ earlier, if the backward classes can provide candidates ranted for purposeful and effective implementation of for filling up the posts in all fields and at all levels of the spirit of those provisions. administration in one generation, they would cease to In this connection, it is worth serious considera­ be backwand classes. What was in the mind of the Con- tion whether reservations in the form of preference in­ stitution-framers was the removal of the inadequacy in stead of exclusive quota should not be resorted to in the representation over a period of time, on each occasion teaching profession in the interests of the backward balancing the interests of the backward classes and the classes themselves. Education is the source of advance­ forward classes so as not to affect the provisions of ment of the individual in all walks of life. The teaching equality enshrined in Articles 14 and 16 (1) as also the profession, therefore, holds a key position in societal interests of the society as a whole. As pointed out ear­ life. It is the quality of education received that deter­ lier, Dr. A m bedkar ivas on the contrary, of the firm view mines and shapes the equipment and the competitive that the reservations under Article 16 (4) should be con­ capacity of the individual, and lays the foundation for fined to the minority of the posts/appointments. In fact, his career in life. It is, therefore, in the interests of all as the debate in the Constituent Assembly shows sections of the society- socially backward and forward- nobody even suggested that the resei'vations under Ar­ and of the nation as a whole, that they aim at securing ticle 16(4) should be in proportion to the population of 29 and ca‘5'Jring the best of education. The student the capacity to express and convey thoughts, the whether he belongs to the backward or forward class is scholai-ship, the characlcr of the person, his interest in also entitled to expect that he receives the best possible teaching, his potentiality as a teacher judged on the con­ education that can be made available to him and cor­ siderations indicated generally at the? outset, should be respondingly it is the duty and the obligation of the adopted. managernent of every educational instutution to make sincere and diligent efforts to secure the services of the What is stated with regard to the teaching profes­ best available teaching talent. In the appointments of sion above is only be way of an illustration as to how teachers, therefore, there should be no compromise on the policy of reservation if it is to subserve its larger any ground. For as against the few who may get ap­ purpose can be modulated and applied rationally to dif­ pointments as teachers from the reserved quota, there ferent fields instead of clamping it mechanically in all will be over the years thousands of students belonging the fields or withholding it from som e areas altogether. to the backward classes receiving education whose It is not meant to lay down any proposition of law in competitive capacity needs to be brought to the level of that behalf. the fonvard classes. What is more, incompetent teach­ 75. The other aspect of the question is whether for ing would also affect the quality of education received the purposes of the percentage-limit of the reservations by the students from the other sections of the society. under Articles 16, the reservations, made under clause However, whereas those coming from the advanced (1) should be taken into consideration together with sections of the society can make up their loss in the those made under clause 4 of the Article. quality of education received, by education at home or outside through private tuitions and tutorial classes, 76. As has already been pointed out above, the reser­ those coming fromthe backward classes would have no vations on the basis of economic criterion alone would means for making up the loss. The teachers themselves be impermissible under clause (1). Assuming, however, must further command respect which they will do more that they are legal, they cannot cut into the reservations when they do not come through any reserved quota. made for the backward classes under clause (4) which The indiscipline in the educational campus is not a little are for the specific purpose of making up the adequacy due to the incompetence of the teachers from whatever in representation in the services. section they may come, forward or backward. It is, therefore, necessary that there should be no exclusive quota kept in the teaching occupation for any section at 77. However, reservations for individuals are per­ all. However, if the candidates belonging to both back­ missible under clause (1) on a ground other than ward and forward classes are equal in merit, preference economic, provided of course, the ground is not hit by should be given to those belonging to the backward Article 16 (2). Instances of such individuals have been classes. For one thing, they must also have a "look into" given earlier which need not be repeated here. There is, the teaching profession as in other professions. Second­ however, no need to make additional reservations for ly, in this vital profession also, the talent, the social ex­ such individua;ls over and above those made under perience and the new approach and outlook of the clause (4). The individual can be accommodated in the members of the backward classes is very much neces­ quota reserved for the backward, or in the unreserved sary. That will enrich the profession and the national or general category depending upon the class to which life. Thirdly, it will also help to meet the complaints of they belong. For example, the defence personnel and the alleged step-motherly treatment received by the stu­ the freedom fighters or their dependents, physically dents from the backward classes and of the lack of en­ handicapped, etc. can be accommadated in the reserved couragement to them even when they are more quota under Article 16 (4) if they belong to the back­ meritorious. Hence in the teaching profession, it is ward classes, and in the unreserved posts/appoint­ preference rather than reservation, which should be ments if they belong to the unreserved categories. This resorted to under Article 16 (4) of the Constitution. A is so because in their respective classes, they will be precaution, however, has to be taken to see that the more disadvantaged than others belonging to those selection body has a representation from the backward classes. Such a classification need not hit either clause classes. (1) or clause (2) of Article 16 but would be justifiable. If this is done, there would be no occasion to keep extra It must, however, be added that in judging the posts/appointments reserved for them under clause (1). merits of the individuals for the profession of teaching as for any other profession, it is not the traditional test it is necessary to add here a word about reserva­ of marks obtained in examinations, but a scientific test tions for women. Clause (2) of Article 16 bars reserva­ 3scd, among other things, on the aptitude in teaching. tion in services on the ground of sex. Article 15 (3) can­ 30

not the siiuation sincc all rcservaiion.s in the ser­ either a)} the posb; or a n\aioniy of ihern reserved from vices iJfder the StaUf can only be made under Article 16. year to year HU there i.H adequate representation of the I-urtht^Wv'omen come from both backward and forward rcsei'ved categories, will in the process deny lo the un- classed- If reservalions are kept for women as a class resen-'cd categories completely ov near completely, their u n d er Article 16 (1), the same inequitous .phenomenon due sharc in the appointments yearw’ise, thus obliterat­ will er*^trge. The women from the advanced classes will ing clause (1) of Article 16 totally over a given penod of secu ie all the posts, leaving those from the backvv'ard time. Hence as pointed out earlier, the extent of the per­ classes \vithout any. R v^ill amount to indirectly provid­ centage of the reservation should be calculated year- ing statutory reservations for the advanced classes as wise with due allowance to tiie operation of the rule such, which is impeninissible under any of the vv?ith regard to the backJog, if any. Still better method is provisions of Article 16. However, there is no doubt that to legulate and calculate the app^ointments on the w'omenare a vulnerable section of the society, whatever roster basis as stated earlier. the strata to which they l>elong. They are more disad­ vantaged than men in their own social class. Hence 80. As regards point (ii), since tl-te provisions of Ar­ reservations for them on that ground would be fully ticle 16 (4) are meant for providing adequate repre­ justified, if they are kept in the quota of the respective sentation in the services to the backward classes, the class, as for other categories of persom, as explained representation has to be in all categories and grades in above. If that is done, there is no need to keep a social the services. The adequacy does not mean a mere quota for women as such and whatever the percenlage- proportionate numerical or quantitative strength. It limit on the resen^ations under Article 16, need not be means effective voice or share in power in mnning the exceeded, administration. Hence, the extent of reservations will have to be estimated with reference to the repre­ 78. Yet another aspect of the matter is whether the sentation in different grades and categories. [See:] The extent of reservations should be determined [i] on the General Manager, Southern Railway v. Rangachari [(1962) basis of the total strength of the particular cadre or ser­ 2 SCR 586]. vice, or on the basis of the appointments made for that cadre in a particular year and [ii] without detemiining To summarise, the question may be answered the inadequacy of representation of each cla.ss in dif­ thus. There is no legal infirmity in keeping the reserva­ ferent categories and grades of the sersMces under the tions under clause (4) alone or under clause (4) and state. clause (1) of Article 16 together, exceeding 50%. How­ ever, validity of the extent of excess of rcservatioas over 79. Both lo avoid arbitrariness in appointments and 50% would depend upon the facts and circumstances of to ensure the availability of the expected number of each case including the field in which and the grade of seats every year, for the resei-v’cd as well as the un- level of administration for which the reservation is kept. i-eserved categories as per the pre- defjned known Although, further, legally and theoretically the excess of norms, it is necessary that the reservations in appoint- jeservations over 50% may be justified, it would or­ rnents/posts are made yearv^ise. Any other practice dinarily be wise and nothing much would be lost, if the would give the authorities complete freedom as to intentions of the framers of the Constitution and the when and at what percentage the reservations should obseivatior\s of Dr. Ambedkar, on the subject in par- be kept. It may happen that in some years, they may not ticluar, are kept in mind. The reservations should fur­ keep reservations at ail whereas in other years, they ther be kept category and gradewise at appropriate per­ may reserve all or majority of the posts. Secondly, the centages and for practical pusposes the extent of reser­ periodicity of reservations m ay also vary depending vations should be calculated category and gradewise. upon the will of the authorities which may be in­ fluenced by several unpredictable considerations. This Question V: would spell out uncertainties in the matter of appoint­ ments both for the reserved and uni’eser\'ed categories. Does Article 16 (4) permit the classification of Hence the reservations will have to be kept and calcu­ 'Backward Classes" into BackwaixJ Classes and lated on yearwise [See; C.A. Rajendran v. Union of India Most Backward Classes or permit classification & Ors. [(1968) 1 SCR 721 at 732-33] and better still, on among them based on economic or other con­ the basis of the roster system with suitable number of siderations? points to correspond the average vacancies. To permit calculation, further, of the percentage of reservations on 81. This question is really in two parts and the tvv'o the basis of the total strength of the cadtx^ and to enable do not mean and refer to the same classification. The the authorities concerned, as stated earlier, to keep first part refers to the classification of the backward 3]

classes into backward and most backward classos while wardness of the baclavard groups c annot be inesuared Ihe second speaks of internal classification of each back­ in terms of the forvv'ardness of the of the forwaid ward class, into backward and more backward in­ groups, so also the forwandness of the fonva?ds among dividuals or families. Both classifications are to be made the backward classes camiot be n\casured in terms of on ecoxiomic or other considerations. Wliereas the first the backwardness of the backward sectiorus of the said classifi^^ation will place some backwand classes in their classes. It has to be judged on the basis of the social entirety above other backward classes, the second will capacities gained by them to compete with the forward place some sections in each backward class internally classes. So long as the individuals belonging to the above the other sections in the same class. The second backward classes do not develop sufficient capacities of classification aims at what has popularly come to be their own to compete with others, they can hardly be known as weeding out of the so-called "creamy" or "ad­ classified as forward. The moment, however, they vanced sections" from the backward classes. Although it develop the requisite capacities, they would cease to be is not that clear, the second order probably seeks to do backward and others more or m ost backwards. There it. We first deal with the second classification. will always be degree of backwardness as there will be degrees of forwardness, whatever the structure of the 82. Society does not remian static. The industrialis- society. It is not the degrees of backwardness or for­ taion and the urbanisation which necessarily followed wardness which justify classification of the society into in its wake, the advance on political, social and forward and backward classes. It is the capacity or the economic fronts made particularly after the commence­ lack of it to compete with others of equal terms which ment of the Constitution, the social-reform movements merits such classification. The remedy therefore, does of the last several decade.s, the spread of education and not lie in classifying each backward class internally into the advantages of the special, provisions including backward and more backward, but in taking the for­ reservations secured so far, have all undoubtedly seen ward from out of the backward classes altogether. at least some individuals and families in the backward Either they have acquired the capacity to compete with classes, however, small in number, gaining sufficient others or not. They cannot be both. means to develop their capacities to compete with others in eveiy field. That is an undeniable fact. Legally, 83. The mere fact further that some fram the back­ therefore, they are not entitled to be any longer called as ward classes w'ho are more advanced than the rest in part of the backward classes whatever their origional that class or score more in competition with the rest of birth mark. It can further hardly be ai^ued that once a them and thus gain all the advantages of the special backward classes, always a backward class. That would provisions such as reservations, is no ground for class­ defeat the very purpose of the special provisioRS m ade ifying the backwards into backwaixJs and most back­ in the constitution for the advancement of the backward wards. This phenmenon is evident among the forward classes, and for enabling them to come to the level of classes too. The more advantaged among the forwards and to compete with the forward classes, as equal similarly gain unfair advantage over others among the citizens. On the other hand, to continue to confer upon forwards and secure all the prizes. This is an inevitable such advanced sections from the backward classes the consequences of the present social and economic struc­ special benefits, would amount to treating equals une­ ture. The correct criterion for judging the forwardness qually violating the equality provisions of the constitu­ of the forwands among the backward classes is to tion. Secondly, to rank them with the rest of the back­ measures their capacity not in terms of the capacity of ward classes would equally violate the right to equality others in their class, but in terms of the capacity of the of the rest in those classes, since it would amount to members of the forward classes, as stated earlier. If they treating the unequals equally. What is more, it will lead cross the Rubicand of backwardness, they should be to perverting the objectives of the special constitutional taken out from the backward classes and should be provision since the forwards among the backward clas­ made disentitled to the provisions meant for the said ses will thereby be enabled to lap up all the special classes. benefits to the exclusion and at the cost of the rest in those classes, thus keeping the rest in perpetual back­ 84. ' It is necessary to highlight another allied aspect wardness. The object of the special constitutional of the issue, in this connection. What do we mean by provisions is not to uplift a few individuals and families sufficient capacity to compete with others? Is it the in the backward classes to ensure the advancement of capacity to compete for Class- IV or Class-Ill or higher the backward classes, as a whole. Hence, taking out the class posts? A Class-IV employe's children may develop forward from among the backward classes is not only capacity to compete for Class-Ill post and in that sense, permissible but obligatory under the Constitution. he and his children may be forward compared to those However, it is necessary to add that just as the back­ in his class who have not secured even Class-IV posts. It 32

cannot hovvcver, arugcd tliat on thal account, he has the Mon? Backw^ard or who were re a lly backw ard who reached the "crcamy" level. If the adequacy of repre­ alone VN^ould be entitled to the benefit of the provisions sentation in the sen'ices as discussed earlier, is to be of Articles 15 (4). In other words, wliile the More back­ evaluati?

away ih^ entire benefils. On the other hand, to deny the State to make "any provision". Similarly, Articles 302, status o f backwardness to the latter and ask them to 304 and 307 require a law to be enacted by the Parlia­ compete with the advanced classes, would leave the lat­ ment or a State legislature as the case may be on the ter without any seat or post. In such circumstances, the subjects concerned. These are but some of the sub-clasf>ificatlon of the backward classes into back­ provisions in the Constitution, to illustrate the point. ward and more or most backward is not only desirable but essential. However, for each of them a special quota 89. The impugned orders are no doubt neither has to be prescribed as is done in the Karnataka enactments of the legislature nor rules or regulations Governm ent order. If it is not done, as in the present made under any Act of the legislature. They are also not case, and the reserved posts are first offered to the more rules made by the 'President under Article 309 of the backward and only the remaining to the backward or Constitution. They are undoubtedly executive orders. It less backward, the more backward may take away all is not suggested that in the absence of an Act or rules, the posts leaving the backward with no posts. The back­ the Government cannot make provisions on the subject ward will neither get his post in the reserved quota nor by executive orders nor is it contended that the im- in the general category for want of capacity to compete punged orders made in exercise of the executive with the forward. powers, have transgressed the limits of legislative powers of the Parliament. What is contended by Shri 87. Hence, it will have to be held that depending Venugopal is that the power to nnake provisions on upon the facts of each case, sub-classification of the such vital subject must be shared with, and can only be backward classes into the backward and more or most exercised after due deliberations by, the Parliament. The backward would be justifiable provided searate quota contention, in essence, questions the method of exercis­ are prescribed for each of them. ing the power and not the absence of it. The method should ^ left to the discretion and the policy of the Questions VI: Government and the exigencies of the situation. It may be pointed out that, so far the reservations made by the Would making "any provision" under Article 16 Central Government in favour of the SCs/STs and the (4) for reservation "by the State" necessarily State Govemments in favour of all backward classes, have to be by law made by the legislatures of have been made by executive instructions, or by rules the State or by law made by Parliament? Or made under Article 309 of the Constitution. No reserva­ could such provisions be made by an executive tions have been made by Acts of legislatures. There is, order? therefore, no illegality attached to the impugned orders merely because the Government instead of enacting a 88. The language of Article 16 (4) is very clear. It statute for the purpose, has chosen to make the enables the State to make a "provision' for the reserva­ provisions by executive orders. Such executive orders tions of appointments to the posts. The provision may having been made under Article 73 of the Constitution be made either by an Act of legislature or by rule or have for their operation an equal efficacy as an Act of regulation made under such Act or in the ateence of the Parliament or the rules made by the President under both, by executive order. Executive order is no less a Article 309 of the Constutution. law under Article 13 (3) which defines law to include among other things, order, by-laws and notifications. 90. If any authority is needed for the otherwise self- The provisions of reservation under Article 16(4) being evident proposition, one may refer to the following relatable to the recruitment and conditions of service decisions of this Court where reservations made by ex­ under the State, they are also covered by Article 309 of ecutive orders were upheld: See Balaji [supra], Mangal the Constitution. Article 309 expressly provides that Singh V. Punjab State, Chandigarh & Or s. [AIR (55) 1968 until provision in that behalf is made by or under an Punjab & Haryana 306], Comptroller & Auditor General Act of the appropriate legislature, the rules regulating of India or Ors. v. Mohan Lai Mehrotra & Ors. [(1992) 1 the resruitment and conditions of service of persons ap­ s e e 20]. pointed to Services under the union or a State may be regulated by rules made by the President or the Gover­ nor as the case may be. Further, wherever the Constitu­ Question VII: tion requires that the provisions may be made only by an Act of the legislature, the Constutution has in ex­ Will the extent of judical review be limited or press terms stated so. For example, the provisions of restricted in regard to the indentification of Article 16 (3) speak of the Parliament making a law, Backward Classes and the percentage of reser­ unlike the provisions of Article 16 (4) which permit the vations made for such classes, to a demonstrab­ 34

ly pcivcrse idGntification or a dc-rnoristrabiy un­ conferred on the Slate by Article 15(4). It may be reasonable percentage? pointed out at the cost of repetition, that the second reason was based on the premise that clause (4) was an 91. The answer to the question lies in the question exception to clauses (1) and (2) of Article 15, and that itself. There are no special principles of judicial review the exception had a numercial relationship with the nor docs that scope of judicial reviews expand when the rule. identification of backward classes and the percentage of the reservtion kept for them is called in question. So In Devadasan the major-ity held that the carry long as correct criterion for the identification of the foinvard' rale which resulted in the particular year in backv/ard classes is applied the result arrived at cannot reserving 65% of the posts for Scheduled Castes and be questioned on the ground that other valid criteria Scheduled Tribes, was unconstitutional sicne the reser­ were also available for such identification. It is possible vations exceeded 50% of the vacancies. According to that the result so arrived at may be defective marginally the Court, though under Article 16 (4), reservation of or in marginal number of cases. That does not in­ reasonable percentage of posts for the members of the validate the exercise itself. No method is perfect par­ Scheduled Castes and the Scheduled Tribes was within ticularly when sociological findings are in issue. Hence, the competence of the State, the method evolved must marginal defects when found may be cured in in­ be such as to strike reasonable balance between the dividual cases but the entire finding is not rendered in­ claims of the backward classes and those of the other valid on that account. employees in order to effectuate the guarantee con­ tained in Article 16 (1), and that for this purpose each 92. The corollary of the above is that when the year of recruitment would have to be considered by criterion applied for identifying the backward classes is itself. With respect, the majority decision was based on either perverse or -per s e defective or unrelated to such the reasoning of Balaji to which a reference has already identification in that it is not calculated to give the been made. Justice Subba Rao dissented from this line result or is calculated to give, by the very nature of the of reasoning’ and it is his reasoning which came to be criterion, a contrary or unintended result, the criterion accepted later both in 'Fhomas and Vasanth Kumar. is open for judical examination. In P. Sagar [(1968) 8 SCR 595], the Court upheld 93. The validity of the percentage of re.servation for the decision of the High Court and dismissed the state's backward classes would depend upon the size of the appeal on the gix)und that there was no material placed backward classes in question. So long at it is not so before the court to show that the list of backward clas­ excessive as to virtually obliterate the claims of others ses was prepared in conformity with the requirements under clause 16 (1), it is not open to challenge. How­ of Article 15 (4). The Court held that the list prepared ever, it is not necessary, and Article 16 (4) does not sug­ w^as ex facie based on castes or communities, and was gest, that the percentage of reservation should be in substantially the same which was struck down by the proportion to the percentage of the population of the High Court in P. SukJmdev & Ors. v. The Gaueinment of backward classes to the total population. The only Andhra Pradesh [(1966) 1 Andhra W.R. 294] guideline laid dow'n by Article 16 (4), as pointed out elsewhere, is the adequacy of representation in the ser­ In Periakarufjpan, [(1971) 2 SCR 430] it was ob­ vices. Within the said limits, it is in the discretion of tlie served that the list of backward classes is open to judi­ State to keep the reservations at reasonable level by cial review and the Government should always keep taking into consideration all legitimate claims and the under review the question of reservation of seats, and relevant factors. In this connection/ the law laid down only those classes which are really socially and educa­ directly on the subject in the following decisions is tionally backward should be allowed to have the benefit worth recounting: of reservation. The reservation of seats should not be allowed to become a vested interest and since in that In Balaji, the Court struck down the impugned case the candidates of backward classes had secured order of reservations on the ground that it had 50% of the seats in the general pool, it, according to the categorised the backward classes on the sole basis of Court, showed that the time had come for a de novo caste and also on the ground that the reservations made comprehensive examination of the question. In other were to the extent of 68% which the Court held words, it is laid down in this case that if some backward was inconsistent with the concept of the special classes which are advanced continue to be, or are in­ provision and authorised by Article 15 (4). The cluded in the list of, backward classes, the list can be Court further held that for these two reasons the im- questior\ed and a judicial scrutiny of the list will be per­ punged order was a fraud on the constitutional power missible. 35

hi Hira La'i |supra|,- it is obsen-cd that if the (4), excepi in the case of SCs/J? Is, a.re in the discretion of reservatiom made under Arlicle 16 (4) make t}iG rule tl'ie State. Whether reservatioiis should at all be kepi in Article 16 (1) n'leaningless, the decision of the and if so, in which field and al w h a t levels and in which Stale would be open to judicial review. But the bur­ mode Of lecruitmenl-direct or pnc:>molional -an.d at what den C)f establishing that a particular reservation is offen­ percentage, are all matters of policy. E.ach authority is sive to Article 16 (1), is on tlie person who takes the requin^d to apply its mind to the facts and circum stan­ plea. ces of the case before it and depending upon the field, the post, the extent of the existing representation of dif­ 94. To sum up, judicial scrutiny v^ould be available ferent classes, the need, if any, to balance the repre­ [ij if the criterion inconsistent with the provisions of sentation, the conflicting claims etc., decide upon the Article 16 is applied for identifying the classes for measures of reservations. The reservations, as stated whom the special or unequal benefit can be given under earlier, carmot be kept mechanically even where it is the said Article; [ii] if the classes who are not entitled to permissible to do so. For some reasons, if Central the said benefit are wrongly included in or excluded Government, in the present case, has not thought it pru­ from the list of beneficiaries, of the special provisions. dent and necessary to keep reserv'^ations in promotions, In such cases, it is not either the entire exercise or the the decision of the Central Government should not be entire list which becomes invalid, so long as the tests probed further. It is for the Government to frame its applied for identificatin are correct and the inclusion or policy and not for this Court to comment upon it when exclusion is only marginal; and |iii] if the percentage of it is not called upon to do so. reservations is either disproportionate or unreasonable so as to deny the equality of opportunity to the un­ 97. Howeverf if it becomes necessary to answer the reserved classes and obliterates Article 16 (1). Whether question, it will have to be held that the reser\'atiorts the percentage is unreasonable or results in the oblitera­ both under Articles 16 (1) and 16 (4) should be confined tion of Article 16 (1), so far as the unreserved classes are only to initial appointments. Except in the decision in concerned, it will depend upon the facts and cir­ Rangachari [supra], there was no other occasion for this cumstances of each case, and no hard and fast rule of Court to deliberate upon this question, hi that decision, general application with regard to the percentage can be the Constitution Bench by a majority of three took the laid down for all the regions and for all times. view that the reservations under Article 16 (4) would also extend to the promotions ort the ground that Ar­ Question VlII: ticles 16 (1) and 16 (2) ai*e intended to give effect to Articles 14 and 15 (1). Hence Article 16 (1) should be Would reservation of appointments or posts "in construed in a broad and general, and not pedantic and favour of any Backward Class" be restricted to technical way. So construed, "matters relating to the initial appointment to the post or would it employment" cannot mean merely matters prior to the extend to promotions as well? act of appointment nor can 'appointment to any office' meant merely the initial appointment but must 95. None of the impugned Government memoranda also include all mattei-s relating to the employment, that provide for reservations in promotions. Hence, the are either incidental to such employment or form part question does not fall for consideration at all and any of its terms and conditions, and also include promotion opinion expressed by this Court on the said point to a selection post. The Court further observed that: would be obiter. As has been rightly contended by Shri I Parasaran, it is settled by the decisions of this Court that "Although Art. 16 (4), which in substance is an constitutional questions are decided only if they arise exception to Arts. 16 (1) and 16 (2) and should, for determination on the facts, and are absolutely neces­ therefore, be strictly construed, the court cannot sary to be decided. The Court, does not decide ques­ in construing it overlook the extreme solicitude tions which do not arise. The tradition is both wise and shown by the Constitution for the advancement advisable. There is a long line of decisions of this Court of socially and educationally backward classes on the point. The principle is so wellsettled and not of citizens. disputed before us that it is not necessary to quote all the authorities on the subject. To mention oiily tivo of The scope of Art. 16 (4), though not as extensive them, see The Central Bank of India, v. llteir Workmen as that of Art. 16 (1) and (2),-and some of the [(I960) 1 SCR 200] and Harsharan Verma v. Union of India matters relating to employment such as salary, [AIR 1987 SC 1969]. increment, gratuity, pension and the age of su­ perannuation, must fall outside its non-obstante 96. The reseivations in the services under Article 16 clause, there can be no doubt that it must 36

includt appointments and posts in the ser­ march over their seniors in the same grade but also over vices. To put a narrower construction on the their superiors at more than one higher level. This has wor<^ 'posts' would be to defeat the object and been witnessed and is being witnessed frequently the underlying policy. Article 16 (4), therefore, wherever reservations arc kept in promotions. It is authorises the State to provide for the reserva­ naive to expect that in such circumstances those who tion of appointments as well as selection posts." are superseded, [and they are many] can work with equanimity and with the same devotion to and interest The majority has, however, added that in exercis­ in work as they did before. Men are not saints. The ing the powers under the Article, it should be the duty inevitable result, in all fields of administration, of this of the State to harmonise the claims of the backward phenomenon is the natural resentnnent, heart-burning, classes and those of the other employees consistently frustration, lack of interest in work and indifference to with the maintenance of an efficient administration as the duties, disrespect to the superiors, dishonour of the contemplated by Article 335 of the Constitution. authority and an atmosphere of constant bickerings and hostility in the administration. When, further, the Justice Wanchoo, one of the two Judges who dif­ erstwhile subordinate becomes the present superior, the fered v^ith the majority view held that Article 16 (4) vitiation of the atmosphere has only to be imagined. implies, as borne out by Article 335, that the reservation This has admittedly a deleterious effect on the entire of appointments or posts for backward classes cannot administration. cover all or even a majority of the appointments and posts and the words "not adequately represented", do It is not only the efficiency of those who are thus not convey any idea of quality but mean sufficiency of superseded which deteriorates on account of such numerical representation in a particular service, taken promotions, but those superseding have also no incen­ not by its grades but as a whole. Appointments, accord­ tive to put in their best in work. Since they know that ing to the learned Judge, must, therefore, mean initial in any case they would be promoted in their reserved appointments and the reservation of appointments quota, they have no motivation to work hard. Being means the reservation of a percentage of initial appoint­ assured of the promotion from the beginning, their at­ ments, The other learned Judge, viz., Ayj^angar, J. form­ titude towards their duties and their colleagues and ing the minority held that Article 16 (4) has to be read superiors is also cqloured by this complex. On that and construed in the light of other provisions relating to account also the efficiency of administration is jeopard­ services and particularly with reference to Article 335. ised. So construed, the work "post" in that Article must mean posts not in the services but posts outside the serv'ices. 99. With respect, neither the majority nor the Even assuming that it was not so, according to the minority in the Constitution Bench has noticed this learned Judge, the inadequacy of representatin sought aspect of the reservations in promotions. The later to be redressed by Article 16 (4) meant quantitative decisions which followed Rangachari were also not deficiency of representation in a particular service as a called upon to and hence have not considered this vital whole and not in its grades taken separately, nor in aspect. The efficiency to which the majority has respect of each single post in the service. By this referred is with respect to the qualifications of those reasoning the learned Judge held that Article 16 (4) can who would be promoted in the reserved quota. only refer to appointments to the services at the initial stage and not at different stages after the appontment The expression "consistently with the main­ has taken place. tenance of efficiency of administration" used in Article 335 is related not only to the qualificatins of those 98. It has been pointed out earlier that the reserva­ who are appointed, it covers all consequences to the tions of the backward classes under Article 16 (4) have efficiency of administration on account of such appoint­ to be made consistently with the maintenance of the ments, They would necessarily include the demoralisa­ efficiency of administration. It is foolhardy to ignore tion of those already in employment who would be the consequences to the administration when juniors adversely affected by such appointments, and its effect supersede seniors although the seniors are as much or on the efficiency of administration. The only reward even more competent than the juniors. When reserva­ that a loyal, sincere and hard-working employee ex­ tions are kept in promotion, the inevitable consequence pects and looks forward to in his service career is is the phenomenon of juniors, however low in the promotion. If that itself is denied to him for no seniority list, stealing a march over their seniors to the deficiency on his part, it places a frustrating damper on promotional post. When further reservations are kept his zeal to work and reduces him to a nervous wreck. at evry promotional level, the juniors not only steal There cannot be a more damaging effect on the ad­ 37 ministration than that causcd by an unix>asonablc Ihmugh Ihc reserved quotas. 1 hc>y may not have to obstruction in the advancomcnt of llic carccr of those face and work in a hostile and dis5x.>spcclful alniospherc who run the administration. The reservations in since they would have won Iheir promotional posts by promotions arc*, theix'fotx', inconsistent with the efficien­ dint of their seniority and/or m erit no less commen­ cy of administration and are impennissible under the dable than those of others. The ui^o to sliow merit and Const! tution. shine would also contribute to overall efficiency of the administration. 100. There is also not much merit in the argument that the adequacy of representation in the administration 102. There is no doubt that the rncaning of the various has to be judged not only on the basis of quantitative expressions used in Article 16, viz.., "matters relating to representation but also on the basis of qualitative repre­ employment or appointment to any office", "any sentation in the administration and, hence, the reserva­ employment or office" and "appointments or posts" can­ tions in promotions are.a must. There is no doubt, as not be whittled down to mean only initial recruitment stated earlier, that the a d e q u a c y of representation in ad­ and hence the normal rule of the service jurisprudence ministration has also to. be judged on the basis of the of the loss of the birth-marks cannot be applied to the qualitative representation in it. However, the qualita­ appointments made under the Article. However, as tive representation cannot be achieved overnight or in pointed out earlier, the exclusive quota is not the only one generation. Secondly, such representation cannot form of reservation and where the resort to it such as in be secured at the cost of the efficiency of the administra­ the pr(^motions, results in the inefficiency of the ad­ tion which is an equally paramount consideration while ministration, it is illegal. But that is not the end of the keeping reservations. Thirdly, the qualitative repre­ road nor is a backward class employee helpless on ac­ sentation can be achieved by keeping reservations in count of its absence. Once he gets an equal opportunity direct recruitment at all levels. It is true that there is to show his talent by coming into the mainstream, all he some basis for the grievance that when I'cservations are needs is the facility to achieve equal results. The kept only in direct recruitment, on many occasions the facilities can be and must be given to him in the form of rules for appointment to the posts particularly at the conce.ssions, exemptions etc. such as relaxation of age, higher level of administration, are so framed as to keep extra attempts for passing the examinations, extra train­ no room for direct recruits. However, the remedy in ing period etc. along with the n^achinery for impartial such cases lies in ensuring that direct rc^cruitment is assessment as state^'above. Such facilities when given provided for posts at all levels of the administration are also a part of the reser\'ation programme and do not and the reservation is kept in all such direct recruit­ fall foul of the requirement of the efficiency of the ad ­ ments. ministration. Such facilities, however, are imperative if, not only equality of opportunity but also the equality 101. It must further be remembered that there is a ot results is to be achieved which is the true meaning of qualitative difference in the conditions of an individual the right to equality. who has entered the service as against those of one who is out of it, though both belong to the backward classes. Question 9; The former joins the mainstream of all those similarly employed. Although it is true that he does not on that Whether the matter should be sent back to the account become socially advanced at once, in some Five-Judge Bench? respects, he is not dissimilarly situated. The handicaps he suffers on account of his social backwardness can be 103. The attacks against the impugned orders as for­ removed, once employed, by giving him the necessary mulated in the aforesaid eight questions, have been relaxations, exemptions, concessions and facilities to dealt with above. The only other attack against the im­ enable him to compete with the rest for the promotional pugned orders is that they are based on the Mandal posts where the promotions are by selection or on Commission Report which sufferes in its findings on merit-cum-seniority basis. A provision can also be some counts. made to man the selectin committees with suitable per­ sons including those from the backward classes and to In the first instance, it must be remembered that devise methods of assessment of merits on impartial the Government could have passed the impugned or­ basis. The selection committee should also ensure that ders without the assistane of any report such as the the claims of the backward class employees are not su­ Mandal Commission Report. Nothing prevents the perseded. These measures, instead of the exclusive Government from providing the reservatins if it is quota, will go a long way in instilling self- confidence satisfied even otherwise that the backward classes have and self-respect in those coming into the service inadequate representation in the ser\'ices under the 38

State. It is however, a different matter that in the The impugned orders have also resi,ncted the reserva­ present case the Government had befotx? it. an investiga­ tions to 27 per cent. U is r.ol suggested that tlie margin tion made by an independent Commission appointed of error of the suivey is as high as 50 per cej\t under Article 340 of the Constitution to enable it to populationv^ise. Assuming, hov^ever, that the popula­ come to Its condusions that certain social groups which tion of the SEBCs is not even 27% of the total popula­ are socially and educationally backward are inade­ tion, even this defect can be cured by another inde­ quately represented in the services and therefore, pendent sur\/ey. For the present, the list as envisaged in deserved reservation therein. The Commission has the impugned orders may be given effect to and in the given its own list of such backward classes and that is meanwhile, a new Commission as suggested earlier based primarily on the lists prepared by the States, it is may be appointed for preparing,an accurate list of the true that in certain States, there are no lists and the backward classes. No harm would be done if in the Commission has, therefore, made its own lists for such meanwhile, at least half of those who are found back­ States. However, while issuing the impugned orders ward are given the benefit of the impugned order's. If, the Government has taken precaution to see that the therefore, the only purpose of sending the matter to the socially and educationally backward classes would Five-Judge Bench now, is to find out the validity of the comprise in the first phase the castes and communities lists of the SEBCs, that purpose can hardly be fulfilled which are common to the lists prepared by the Mandal since the Bench cannot on its own and without ade­ Commission and the States, The result is that it is the quate material invalidate the lists. The Bench would State Government lists of SEBCs which would prevail also have to direct a fresh inquiry into the matter, if it for the time being and those SEBCs mentioned in the comes to the conclusion that the grievance made in that lists of the Mandal Commission which are not in the behalf is correct. The purpose would be better served if State lists would not get the benefit of the impugned this Bench itself directs that the matter be examined orders. It is not seriously contended before us that the afresh by a Commisison newly appointed for the pur­ State lists are prepared without application of mind or pose. In any view of the matter, it is unnecessary to without any basis. It is no doubt urged that in certain send the case back to the Five-Judge Bench. States some castes and communities have come to be introduced in the lists of backward classes on the eve of 104. The answers +o the questions may now be sum­ the elections and thus the lists have been expanded marised as follows; from time to time. Assuming that there is some grain of truth in this allegation, the grievance in that behalf can Question 1; be redressed by a fresh appraisal of the State lists by an independent machinery. The further attack against the Clause (4) of Article 16 is not an exception to lists prepared by the Mandal Commission is that they clause (1) thereof. It only carves out a section of are prepared without an adequate and a proper survey the society, viz., the backward class of citizens with the result that some social groups which ought not for whom the reservations in services may be to be in the SEBC lists have been included therein kept. The said clause is exhaustive of the reser­ whereas others which ought to be there have been ex­ vations of posts in the services so far as the cluded. The third attack against the Commission-lists is backward class of citizens is concerned. It is that since there are States where there exist no lits of not exhaustive of all the reservations in the ser­ SEBCs, the SEBCs in those States would suffer and that vices that may be kept. The reservations of would be a discrimination against them. The last attack posts in the services for the other sections of the is that the Commission has exaggerated the number of society can be kept under clause (1) of that Ar­ castes. While there are allegedly only 1051 backward ticle. castes, the Commission has given a list of about 3743 castes. Assuming that all these contentions are correct, Question 2: all that they come to is that certain social groups which ought not to be in the SEBC lists are found there The backward class of citizens referred to in Ar­ whereas others which ought to be there are not there. ticle 16 (4) is the socially backward class of Such defects can bo expected in any survey of this kind citizens whose educational and economic back­ since it is difficult to have a cent per cent accurate result wardness is on account of their social back­ in any sociological survey. In any case although the wardness, A caste by itself may constitute a Mandal Commission on its survey has found the total class. However, in order to constitute a back- population of SEBCs as 52 per cent, the reservation it waixi class the caste concerned must be socially has recommended is only 27 per cent which is almost backward and its educational and economic half of the; population of SEBCs according to its survey. backwaixiness must be on account of its social 39

back Vk'ardness. tions wili be ijlegai.

Thceconomic crilGrion by itself cannot identify a It is not permissible to classify backward classes class as tJackward unless the economic backwardness of or a backward class social group into an advanced sec­ the class is on account of its social backwardness. tion and a backward section either on economic or any other consideration. The test of advancement lies in the The weaker sections mentioned in Article 46 are a capacity to compete with the forward classes. If the genus of vvhich backward class of citizens mentioned in advanced section in a backward class is so advanced as Article 16 (4) constitute a species. Article 16 (4) refers to be able to compete with the forward classes, the ad­ to backward classes which area part of the weaker sec­ vanced section from the backward class no longer tions of the society and it is only for the backward clas­ belongs to the backward class and should cease to be ses who are not adequately represented in the services, considered so and denied the benefit of reservations and not for all the w eaker sections that the reserv^ations under Article 16 (4). in services arc provided under Article 16 (4). Question 6: Q uestions: The provisions for reservations in the services No reservatias of posts can be kept in services under Article 16 (4) can be made by an execu­ under the Stale based exclusively on economic tive order. criterion either under Article 16 (4) or under Ar­ ticle 16 (1). Question 7:

Question 4; There is no special law of judicial review when the reservations under Article 16 (4) are under Ordinarily, the reservatioas kept both under Ar- scrutiny. The judicial review will be available ticel 16 (1) and 16 (4) together should not ex­ only in the cases of demonstrably perverse ceed 50 per cent of the appointments in a grade, identification of the backward classes and in the cadre or service in any particular year. It is only cases of unreasonable percentage of reserva­ for extraondinary reasons that this percentage tions made for thpm. may be exceeded. However, every excess over 50 per cent will have to be justified on valid Question 8: grounds which grounds will have to be specifi­ cally made out. It is not necessary to answer the question since it does not arise in the present case. However, The adequacy of representation is not to be deter­ if it has to be answered, the answer is as fol­ mined merely on the basis of the over all numerical lows: strength of the backward classes in the services. For determining the adequacy, their representation at dif­ The reservations in the promotions in the services ferent levels of administration and in different grades arc unconstitutional as they are inconsistent with the has to be taken into consideration. It is the effective rnaintenance of efficiency of administration. voice in the administration and not the total number which determines the adequacy of representation. However, the backward classes may be provided with relaxations, exemptions, concessins and facilities Question: 5 etc. to enable them to compete for the promotional posts with others wherever the promotions are based Article 16 (4) permits classification of backward on selection or merit-cum-seniority bas’s. classes into backward and more or most back­ ward classes. However, this classification is Further, the committee or body entrusted with permitted only on the basis of the degrees of the task of selection must be representative and manned social backwardness and not on the basis of the by suitable persons including those from the backward economic consideration alone. classes to make an impartial assessment of the merits.

If backwand classes are classified into backward To ensure adequate representation of the back­ and more or most backward classes, separate quotas of ward classes which means representation at all levels reservations will have to be kept for each of such clas­ and in all grades in the service, the rules of recruitment ses. In the absence of such separate quotas, the reserva­ must ensure that there is direct recruitment at all levels 40

and in all grades in the services. sections no longer belong to the backward classes and as such are ciisentitied to the reser­ Quest ion 9; vation under Article 16 (4). 'I'he reservations The matter should not be referred back to the can be made only for the benefit of the back­ Five-judge Bench since almost all the relevant ward or the non-advanced sections of the questions have been answered by this Bench. backward classes. The grievance about the excessive, and about the Wrong inclusion and exclusion of social (b) When backward classes are classified into g^roups in and from the list of backu^ard classes backward and more or m ost backward classes can be examined by a new Commission which as stated above on the basis of the degrees of m a y be set up for the purpose. social backwardness [and not on the basis of 105. Hence the followng order: the economic criterion alone], exclusive quotas of reservations will have to be kept separately O rd er for the backward and the more or most back­ ward classes. It will be impermissible to keep 1, The benefit of clause 2 (i) of the first order dated a common quota of reservation for all the 13th August, 1990 cannot be given to the advanced sec­ backward classes togher and make available tions of the socially and educationally backward classes posts for the backward classes only if they are because they no longer belong to the socially and left over after satisfying th(? requirements of educationally backward classes although they may be the more or most backward classes. That may members of the caste, occupational groups or other so­ virtually amount to a total denial of the posts cial groups which might have been named as socially from the resers^ed quota to the backward clas­ and educationally backward classes in the lists which ses. , arc issued or which may be issued under clause 2 (iv) of the said order. This clause if so read down, is valid. (c) Clause 2 (i) of the order dated 25th September, 1991 is, therefore, invalid, unless it is read, in­ The rcst of the said order is valid. terpreted and implemented as above.

The Government may evolve the necessary socio­ 3. Clause 2 (ii) of the said order is invalid since economic criterion to define the advanced sections of no reservations can be kept on economic the backward classes to give effect to the order. criterion alone.

106. The writ petitions and transfer cases are disposed 2. Clause 2 (i) of the second order dated 25th Sep­ of in the above terms. No costs tember, 1991 is valid only if it is read down as under;

107. In view of the reasons given and the conclusions (a) No distinction can be made in the backward arrived at by me above, I agree with the conclusions calsses as poor and poorer sections thereof. recorded in paragraphs 122 and 124 and the directions The distinction can be made only between the given in paragraph 123 [A], [B] and [C] of the judge­ advanced and the backward sections of the ment being delivered by brother Jeevan Reddy, J. on backward classes. The advanced sections are behalf of himself, and on behalf of the learned Chief those who have acquired the capacity to com­ Justice and brothers Venkatachaliah and Ahmadi, JJ. pete with the forward classes. Such advanced

N ew Delhi, ...... s d / ...... J 16th November, 1992. (P. B. SAWANT) IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No. 930 of 1990

Indra Scavhney etc. etc. ....Petitioners' Versus Union of India & Ors. etc. etc. .Respondents

WITH

Writ Petition (Civil) Nos. 97/91, 948/90, 966/90, 965/90, 953/90, 954/90, 971/90, 972/90, 949/90, 986/90, 1079/90, 1106/90, 1158/m, 1071/90, 1069/90, 1077/90, 1119/90, 1053/90, 1102/90, 1120/90, 1112/90, 1276/90, 1148/90, 1105/90, 974/90, 1114/89, 987/90, 1061/90, 1064/90, 1101/90, 1115/90, 1116/90, 1117/90, 1123/90, 1124/90, 1126/90, 1130/90, 1141/90, 1307/90, TC. (C) Nos. 27/90, 18-31/90, 32-33/90, 34-35/90, 65/90, 1/91,

Writ Petition (Civil) Nos. 1081/90, 343/91, 1361/90, 1094/91, 1087/90, 1128/90, 36/91, 3/91

Writ Petition (Civil) Nos. 11/92, 111/92, 261/92.

LA. Nos. 1-20 IN Transfei- Case (Civil) Nos. 27-35/90

TU13GMENT

S. RATNAVAEL TANDIAN, J the Indian independence after the end of British paramountcy and forty-two years from the advent of 'Equality of status and of opportunity../ the rubric our Constitution have marched on, the tormenting chiselled in the luminous preamble of our vibrating enigma that often nags the people of India is whether and pulsating Constitution radiates one of the avowed the principle of 'equality of status and of opportunity' objectives in our Sovereign, Socialist and Secular to be equally provided to all the citizens of our country Democratic Republic. In every free country which has from cradle to grave is satisfactorily consummated and adopted a system of governance through democratic whether the clarion of 'equality of opportunity principles, the people have their fundamental in matters of public employment' enshrined in inalienable rights and enjoy the recognition of inherent Article 16 (4) of the Constitution of India has been dignity and of equality analogous to the rights called into action ? With a broken heart one has to proclaimed in the 'Bill of Rights' in U.S.A., the 'Rights answer these questions in the negative. of Man' in the French Constitution of 1971 and 'Declaration of Human Rights' etc. Our Constitution is The founding fathers of our Constitution have unquestionably unique in its character and assimilation designedly couched Articles 14, 15 and 16 in having its notable aspirations contained in comprehensive phraseology so that the frail and 'Fundamental Rights' (in part III) through which the emaciated section of the people living in poverty, illumination of Constitutional rights comes to us not rearing in obscurity, possessiing no wealth or through an artless window glass but refracted with the influence, having no education, much less higher enhanced intensity and beauty by prismatic education and suffering from social repression and interpretation of the Constitutional provisions dealing oppression should not be denied of equality before the wiith equal distribution of justice in the social, political law and equal protection of the laws and equal and economic spheres. opportunity in the matters of public employment or subjected to any prohibition of discrimination on Though forty-five years from the commencement of grounds of religion, race, caste, sex or place of birth. 42

To achieve the above objectives, the Government called the 'O.M.') in August 1991 and thereafter an hav'e enacted innumerable social welfare legislations amended O.M. in September 1991 on the basis of the a n d geared up social reformative nieasures for recommendations of the Mandal Commission. uplifting the social and economic development of the Immediately after the announcement of the disadvantage section of people. True, a rapid societal acceptance of the Report of the Mandal Commission, as transformation and profusion of other progressive pointed out in Writ Petition No. 930/90 and the changes are taking place, yet a major section of the Annexures I & II enclosed thereto, there were unabated people living below the poverty line and suffering pro as well as anti-reservation agitations and violent from social ostracism still stand far behind and lack in societal disturbances virtually paralysing the normal every respect to keep pace with the advanced section life. It was unfortunate and painful to note that some of the people. The undignified social status and sub youths who are intransigent to recognise the doctrine human living conditions leave an indelible impression of equality in matters of public employment and who that their forlorn hopes for equality in every sphere of under the mistaken impression that 'wrinkles and gray life are only a myth rather than a reality. It is verily heirs' could not do any thing in this matter, actively t>elieved — rightly too — that the one and only participated in the agitation. Similarly, another section peerless way and indeed a most important and of people suffering from a fear psychosis that the promising way to achieve the equal status and equal Mandal recommendations may not at all be opportunity is only by means of constitutional justice implemented entered the fray of the agitation. Thus, so that all the citizens of this country irrespective of both the pro and anti-reservationists on being their religion, race, caste, sex, place of birth or any of detonated and inflamed by the ruffled feelings that them may achieve the goal of an egalitarian society. their future in public employment is bleak rai.sed a This Court has laid down a series of landmark number of gnawing doubts which in turn judgments in relation to social justice by interpreting sensationalised the issue. Their pent up fury led to an the constitutional provisions upholding the cherished ot^y of violence resulting in lo.ss of innocent life and values of the Constitution and thereby often has damaged the public properties. It is heart-rending that shaped the course of our national life. Notwithstanding some youths — particularly students — in their prime a catena of expository decisions with interpretive of life w ent to the extent o f even self-immolating semantics, the naked truth is that no streak of light or themselves. No/lenying the fact that the horrible, spine no ray of hope of attaining the equality of status and — chilling and jarring piece of information that some equality of opportunity is visible. youths whose feelings ran high had put an end to their lives in tragic and pathetic manner had really caused a Confining to the issue involved in this case as tremor in Indian society. My heart bleeds for them. regards the equal Opportunity in the matters of public employment, I venture to articulate without any In fact, a three-judges Bench of this Court reservation, even on the possibility of any refutation comprised of Ranganath Misra, CJ and K.N. Singh and that it is highly deploratble and heart-rending to note M.H. Kania, JJ (as the learned Chief Justices then were) that the constitutional provision, namely, clause (4) of taking note of the widespread violence, by their order Article 16 proclaiming a ‘"'Fundamental Right" enacted dated 21st September 1990 made the following appeal to the about 42 years ago for providing equality of general public and particularly the student community : opportunity in matters of public employment to people "After we made order on 11th September, belonging to any backward class has still not been 1990, we had appealed to counsel and those given effect to in services under the Union of India and who were in the court room to take note of the many more States. A number of Backward Classes fact that the dispute has now come to the apex Commissions have been appointed in some of the court and it is necessary that parties and the States, the recommendations of which have been people who were agitated over this question repeatedly subjected to judicial scrutiny. Though the should maintain a disciplined posture and President of India appointed the second Backward create an atmosphere where the question can Classes Comrriission under the chairmanship of Shri be dispassionately decided by this court...... B.P. Mandal as far back as 1st January, 1979 and the ...... There is no justification Report was submitted in December, 1980, no effective to be panicky over any situation and if any steps were taken for its implementation till the one's rights are prejudiced in any manner, issuance of the two impugned OMs. Having regard to centainly relief would be available at the this appalling situation and the pathetic condition of appropriate stage and nothing can happen in the backward classes, for the first time the Union of between which would deter this court from India has issued the Office Memorandum (hereinafter exercising its pow er in an effective m anner," •13

t3(i that as ii may, sitting as a judge one cannot be bars the power of free Ihougtu and action of swayed cither way while interpreting the an individual — even so long gs that power Constitutional provisions pertaining to the issues does not injure others — is devilish, and under controversy by the mere reflexes of the opinion must go down." of ^ny section of the people or by the turbulence (Vide 'The Complete Works of Swami created in the society or by the emotions of the day. Vivekananda, Vol. V page 2 9 ') Because nothing inflicts a deeper wound on our Constituion than in interpreting it running berserk A Biblical verse in New Testament sayS' "He regardless of human rights and dignity. denieth none that come upto Him, black and w hite". We are very much alive to the fact that the issues with which we are how facing are hypersensitive, Sura 10 Verse No. 44 of Holy Quran reads : highly explosive and extremely delicate. Therefore, the "Verily God will not deal unjustly with man permissible judicial creativity in tune with the in augit; it is man that w ron g s his ow n Constitutional objectivity is essential to the soul." interpretation of the Constitutional provisions'so that The Hindu who form the majority, in our the dominant values may be discovered and enforced. country, are divided into 4 Vamas — namely. At the same time, one has to be very cautious and Brahmins, Kshatriyas, Vaishyas (who are all twice careful in approaching the issues in a very pragmatic born) and lastly Shudras which Varnas are having a and realistic manner. four tier demarcated hierarchical caste system based Part-Ill dealing with 'Fundamental Rights' and on religious tenets, believed to be of divine origin or Part-IV dealing with 'Directive Principles of State divinely ordained, otherwise called the Hindu Policy' which represent the core of the Indian Vamasharma Dharma. Beyond the 4 Vamas Constitutional philosophy envisage the methodology Hinduism recognises a community, by name for removal of historic injustice and inequalities — Panchama (untouchables) though Shudras are either inherited or artificially created — and social and recognised as being the lowest rung of the economic disparity and ultimately for achieving an hierarchical race. This system not only creates egalitarian society in terms of the basic structure of our edtreme forms of^ caste and gender prejudices, Constitution as spelt out by the preamble. injustices, inequalities but also divides the society into privileged and disabled, revered and despised Though all men and women created by the and so on. The perpetuation of casteism, in the Almighty, whether orthodox or heterodox; whether words of Swami Vivekananda "continues social theist or atheist; whether born in the highest class or tyranny of ages". The caste system has been lowest class; whether belong to 'A' religion or 'B' religiously preserved in many ways including by religion are biologically same, having same purity of the judicial verdicts, pronounced according to the blood. In a Hindu Society they are divided into a traditional Hindu Law. number of distinct sections and sub sections known as castes and sub-castes. The moment a child comes out of On account of the caste system and the the mother's womb in a Hindu family and takes its consequent inequalities prevailing in Hindusm first breath and even before its umbilical cord is cut off, between person to person on the basis of the innocent child is branded, stigmatized and put in a Vamasharma Dharma new religions such as separate slot according to the caste of its parents Buddhism and Jainism came into existence on the soil of this land. Many humanistic thinkers and despite the fact that the birth of the child in the farseeing revolutionary leaders who stood forsquare particular slot is not by choice but by chance. by the down — trodden section of the Backward The concept of inequality is unknown in the Classes aroused the consciousness of the backward kingdom of God who creates all beings equal, but the class to fight for justice and join the wider srtuggle "created" of the creator has created the artificial for social equality and propagated various reforms. inequality in the name of casteism with selfish motive It was their campaign of waging an unending war and vested interest. against social injustice which created a new awareness. The sustained and strenuous efforts o f Swami Vivekananda in one of his letters addressed those leaders in that pursuit have been responsible to his disciples in Madras dated 24.1.1894 has stated for bringing many new social reforms. thus : Recognizing and recalling the self-less and "Caste or no caste, creed or no creed,. , . or dedicated social service carried on by those great class, or caste, or nation, or institution which leaders from their birth to the last breath; the then 44

Prirne Minister while making his clarificatory uncaring of the stoiTns and stresses that affect tb^’ sta^^'Hient regarding the implementation of the Mandal society. CoHitnission's Report in the Rajya Sabha on the 9th August 1990 paid the tributes in the following words ; This Summit Court has not only to interpret the Constitution but also sometimes to articulate the "In fact this is the realisation of the dream of Constitutional norms, serving as a publicist for reforms Bh a r a t RATNA Dr. B.R. Ambedkar, of the in the ares of the most pressing needs and directing the great PERIYAR Ramaswamy and Dr. Ram executive to take the needed actions. Mere verbal Manohar Lohia." gymnastics or empty slogans and sermons honoured Harkingback, it is for the first time that the more often in rhetoric than practice are of no use. controversial issue as regards the equality of It m ay be a journey of thou san d miles in achieving opportunity in matters of public employment as the equality of status and of opportunity, yet it must contemplated under Article 16 (4) has come up for begin with a single step. So let the socially backward deliberation before. a nine-judges Bench, on being people take their first step in that endeavour and referred to by a five-judges Bench. march on and on. There are various Constitutional provisions such as When new societal conditions and factual situations Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 demand and Judges to speak they, without professing which are designed to redress the centuries old the tradition of judicial lock-jaw, must speak out. so I grievances of the scheduled castes and scheduled tribes speak. as w'cll as the backward classes and which have come for judicial interpretation on and off. It is not merely a For providing reservations for backward class of part of the Constitution but also a national citizens. Scheduled Castes and Schedules Tribes in the commitment. public educational institutions and for providing equal opportunity in the matters of public employment, This Court which stands as a sentinel on the quievie some States have appointed Commissions on over the rights of people of this country has to Backward Classes. The Central Government has also interpret the Constitution in its true spirit with insight appointed two Commissions under Article 340 (1) of into social values and suppleness of the adoption to the the Constitution of India for identifying the backward changing social needs upholding the basic structure of class of citizens as contemplated under Article 16 (4) the Constitution for securing social justice, economic for the purpose of making reservation of appointments justice and political justice as well as equality of status or posts in the Services under Union of India. The list and equality of opportunity. of Commissions appointed by the various States and the Central Government is given as under : The very blood and soul of our Constitutional scheme are to achieve the objectives of our Constitution as contained in the preamble which is COMMISSIONS ON BACKWARD CLASSES part of our Constitution as declared by this Court in 1918-1990 Kesvanandn Bharti v. Kcrola 1973 (SuppL) SCR 7, So it is incumbent to lift the vail and see the notable Andhra Pradesh Manohar Pershad Committee aspirations of the Constitution. (1968-69) Ananta Raman Commission (1970) No one can be permitted to invoke the Constitution Muralidhara Rao Commission either as a sword for an offence or as a shield for (1982) anticipatory defence, in the sense that no one under the guise of interpreting the Constitution can cause Bihar Mungari Lai Commission irrevertible injustice and irredeemable inequalities to (1971-76) any section of the people or can protect those unethically claiming unquestionable dynastic Gujarat A.R. Bakshi Commission (1972-76) monopoly over the Constitutional benefits. Justice C.V. Rane Commission (1981-83) Therefore, the judges who are entrusted with the Justice R.C. Man lead Commission task of fostering an advanced social policy in terms of (1987) the Constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and H aryana Gurnam Singh Commission (1990) 45 jammu anUttar Pradesh Chhedi Lai Sathi Commission entire scheme should be reviewed after twenty (1975-77) years. (Vide para 13 : 40)

All India Kaka Kalelkar Com m ission The entire Report comprises of fourteen (1953-55) Chapters of which Chapter IV deals with 'Social B.P. Mandal Commission (1979-80) Backwardness and Caste', Chapter XI deals with Note: 1. Where two dates are mentioned they 'Socio-Educational Fields Survey and Criteria of refer to year of appointment and year of Backw ardness', C hapter XII deals with submission. Where only one is 'Identification of OBCs' and Chapter XIII gives the mentioned it refers to year of submission 'Recomrnendations'. After a thorough survey of the which is also the year of appointment in population, the Commission has arrived at the some cases. percentage of OBCs as follows :

2. The three commissions of the colonial "12.22 From the foregoing it will be seen that period mentioned here had an ambit excluding Scheduled Castes and Scheduled Tribes, wider than those groups that later came other Backward Classes constitute nearly 52% of the to be known as Backward Classes. Indian population. 46

^frcentige of DLsiribuHon of Indian Populstion by Casfe Pensioris ftnd Religious Groups (Dcptl. of Personnel & 1'raining)

S.No. Gro*JpNamc Pcrccniage of the total population OFFICE MEMORANOimi

I. Scheduled Castes and Scheduled Tribes New Delhi, the 13th August, 1990 A-1 S

II. Non-!1indu Communities, Religious Groups, etc. Report) — Reservation for Socially and Educationally Backward Classes in B-1 M»Jslitns (other than STs) 11.19 (0.2)’ services under the Government of India. B-2 Christians (other than STs) 2.16(0.44)» B-3 SikJ's (other than SCs & STs) 1.67(0.22)* B-4 Budhists (other than STs) - 0.67 (0.03)» In a multiple undulating society like ours, early B-5 jaln s 0.47 achievement of the objective of social justice as

Total of 'B' 16.16 enshrined in the Constitution is a must. The second Backward Classes Commission called the Mandal III. Forward Hindu Castes & Communities Commission was established by the then Government C-1 Brahmins (including Bhumihars) 5.52 with this purpose in view, v/hich submitted its report C-2 Rajputs 3.90 to the Government of India on 31.12.1980. C-3 Marathas 2.21 C-4 Ja ts 1.00 2. Government have carefully considered the report C-5 Vaishyas-Bania etc 1.88 and the recommendations of the Commission in the C-6 Kayasthas 1.07 present context responding the benefits to the extended C-7 Other forward Hindu castes/groups 2,00 to the socially and educationally backward classes as Total o f'C ' 17.58 opined by the Commission and are of the clear view Total o f 'A " B '& 'C 56.30 that at the outset certain weaghtage has to be provided IV. Backwrd Hindu Castes & Communities to such classes in the .services of the Union and their

D. Rennaining Hindu castes/groups which come Public Undertakings. Accordingly orders are issued as in the categopty of 'Other follows : Backward Classes' 43.70® (i) 27% of the vacancies in civil posts and services V. Backwand Non-Hindu Communities under the G overnm ent of India shall be riBserved for E. 52% of religious groups under section B SEBC. may also be treated as OBCs 8.40 (ii) The aforesaid reservation shall apply to vacancies F. Tlie approximate derived population to be filled by direct recruitment. Detailed instructions of Other Backward Classes including relating to the procedure to be followed for enforcing r>on-Hindu Communities 52% (Aggregate of D & E, rounded) reservation will be issued separately.

@ T his is a derived figure (iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same * Figures in brackets give the population of S.C. & S.,T. among these non-Hindu Communities. standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

On the basis of the Commission's Report — (iv) The SEBC would comprise in the first phase the popularly known as Mandal Commission's Report — castes and communities which are common to both the (for short 'the Report'), two Office Memoranda — one list in the report of the Mandal Commission and the dated 13.8.1990 and the other amended one dated State Governments' lists. A list of such 25.9.1991 were issued by the Government of India. We castes/communities is being issued separately. are reproducing those Memoranda hereunder for (v) The aforesaid reservation shall take effect from proper understanding and appreciation of the 7.8.1990. However, this will not apply to vacancies significance of these two OMs and the distinctions where the recruitment process has already been appearing between them : initiated prior to the issue of these orders. "No. 36012/31/90-Estt (SCT) Similar instructions in respect of public sector Government of India undertakings and financial institutions including Ministry of Personnel, Publication Grievances & public sector banks will be issued by the Department 47

of Public:^ Enterprises and Ministry of Finance 3. '1 he O.M. of even number dated tiu- 13(h respectively. August, 1990, shall be deemed to have boon amended to the extent specified above. Sd/- (Smt. Krishna Singh) sd/- Joint Secretary to the Govt of India (A.K HARIT) Deputy Secretary to the G ovt, of India Amended Memorandum: The expression deployed in both the OMs, "No. 36012/31/90-Estt. (SCT) "Socially and Educationally Backward Classes" is Government of India on the strength of the Report of the Commission, Ministry of Personnel, Public Grievances & Pensions though no such expression is used in Article 16(4) (Deptt. of Personnel & Training) whereunder the reservation of appointments or posts in favour of any backward class of citizens is OFHCE MEMORANDUM to be made. This expression is used as an explanatory one to the words 'backward class' New Delhi, the 25th September, 1991. occurring in Article 16(4). Articles 16 (4) and 340 (1) were embodied in the Constitution even at the Subject; Recommendation of the Second initial stage ; but Article 15 (4) containing the same Backv^ard Classes Commission (Mandal expression as in Article 340 (1) was subsequently Report) — Reservation for Socially and added by the Constitution (First Amendment) Act of Educationally Backward Classes in 1951 to over-ride the decision of this court in State of service under the Government of India. Mfidras v. Smt. champakam Dorairajan 7957 SCR 525.

The undersigned is directed to invite the attention LEGISLATIVE HISTORY OF ARTICLE 15 (4) to O.M. of even number dated and 13th August, 1990, OF THE CONSTITUTION on the above sections of the SEBCs to receive the A legislative historical event that warranted the benefits of reservation on a preferential basis and tq botroduction of clause 4 to Article 15 may be briefly provide reservation for other economically backward sections of the people not covered by any of the retraced. existing schemes of reservation, Government have The Government of Tamil Nadu issued a decided to amend the said Memorandum with Communal G.O. in 1927 making compartmental immediate effect as follows :— reservation of posts for various communities. Subsequently the G.O. was revised. In 1950 one Smt. 2. (i) Within the 27% of the vacancies in civil posts Champakam Dorairajan who intended to join the and services under the Government of India Medical College, on enquiries came to know that in reserved for SEBCs, preference shall be given respect of admissions into the Government Medical to candidates belonging to the poorer College the authorities were enforcing and sections of the SEBCs. In case sufficient observing an order of the Government, namely, number of such candidates are not available, notification G.O. No. 1254 Education dated 17.5.1948 unfilled vacancies shall be filled by the other commonly known as Communal G.O. which SEBC candidates. restricted the number of seats in Government Colleges for certain castes. It appeared that the (ii) 10% of the vacancies in civil posts and proportion fixed in the old Communal G.O. had services under the Government of India shall been adhered to even after commencement of the be reserved for other economically sections of Constitution on January 26, 1950. She filed a Writ the people who are not covered by any of the Petition on 7th June 1950 under Article 226 of the existing schemes of reservation. Constitution for issuance of a writ of mandamus restraining the State of Madras from enforcing the (iii) The criteria for determining the poorer said Communal G.O. on the ground that the G.O. sections of the SEBCs or the other was sought or purported to be regulated in such a economically backward sections of the people manner as to infringe the violation of the who are not covered by any of the existing Fundamental rights guaranteed under Aritcles 15 (1) schemes pi reservations are being issued and 29 (2). Similarly one Srinivasan who had separately. applied for admission into the Government 48

Engine ring College at Guindy also filed a Writ Petition any provision for the reservation of appointments or praying for a writ of mandamus for the same relief as posts in favour of any backward class of citizens which in Chart^Hikam Dwairajan. A full bench of the M adras in the opinion of the State arv not adequately High Court hoard both the Writ Petitions and allowed represented in tlie ser\'ices under the Stale. As the them (vide Smt. CItampakaw Dorairnjan and another v. power conferred on the State under this clause 4 is to State of Madras AIR (38) 1951 Madras 120). In this be exercised only if 'in the opinion of the State' that connection it may be mentioned that while the Writ there is no adequate representation in the services Petition was pendirig before the High Court, another under the State, a vital question arose for consideration revised G.O. No. 2208 dated June 16, 1950 substantially whether the issue of determination by the State as to reproducing the communal proportion fixed in the old w'hether a particular class of citizens is backward or Communal G.O. came into being. The State on being not is a justiciable one? This question was answered by aggriev'ed by the judgement of the Madras High Court the Constitution Bench of this court in TriJok Nath preferred an appeal before this court in State of Madras Tiku & Another v. State of Jammu & Kashmir and V. Smt. ChampakaTn Doiuirajan 1951 SCR 525. A seven Others 1967(2) SCR 265 holding thus: Judges Bench dismissed the appeal holding that "the Communal G.O. being inconsistent with the provisions "While the State has necessarily to ascertain of Article 29(2) in Part III of the Constitution is void whether a particular class of citizens are under Article 13." This judgment necessitated the backward or not, having regard to acceptable introduction of a Bill called Constitution (First criteria, it is not the final word on the question; Amendment) Bill for over-riding the decision of this it is a justiciable issue. While ordinarily a Court in Champakam's case (supra). Court may accept the decision of the State in that regard, it is open to be can vassed if that During the Parliament Debates held on 29th May decision is based on irrelevant considerations. 1951 Pt. Jawahar Lai Nehru, the then Prime Minister The power under clause (4) is also conditioned while moving the Bill to amend the Constitution stated by the fact that in regard to any backward as follows : classes of citizens there is no adequate "W e have to deal with the situation where for representation in the sen/ices under the State. a variety, of causes for which the present The opinion of "(he State in this regard may generation is not to blame, the past has the ordinarily be accepted as final, except when it responsibility, there are groups, classes, is established that there is an abuse of power." individuals, communities, if you like, who are backw ard. They are backw^ard in many ways - The w ords "backward class of citizens" occurring in economically, socially, educationally Article 16 (4) are neither defined nor explained in the sometimes they are not backward in one of Constitution though the same words occurring in these respects and yet backward in another. Article 15 (4) are followed by a qualifying phrase, The fact is therefore that if we wish to "Socially and Educationally". encourage them in regard to these matters, we have to do something special for them ...... Though initially. Article 10 (3) of the draft Constitution did not contain the qualifying word Therefore one has to keep a balance between 'backward' preceding the words 'class of citizens' the the existing fact as we find it and the objective said qualifying word was subsequently inserted on the and ideal that we aim at." suggestion of the Drafting Committee. Strong objection Thereafter, the Bill was passed and clause (4) to was taken for insertaion of the word 'backward' and Article 15 was added by the Constitution (First more so for the introudction of Article 10 (3) of the Amendment) Act. The object of the newly introduced draft Constitution. Amendments were moved by one clause (4) to Article 15 was to bring Ariteles 15 and 29 section of the members of the constituent Assembly for in line with Articles 16(4), 46 and 340 and to make it complete deletion of clause (3) and by another section constitutionally valid for the State to reserve seats for for the omission of the word 'backward'. The backward class of citizens, scheduled castes and discussion and debate took place at length for and scheduled tribes in the public educational institutions against the introduction of clause (3) as well as for the as well as to make other special provisions as may be insertion of the word 'backward'. Before the motions necessary for their advancement. for amendments were put on vote Dr. B.R. Ambedkar SCOPE OF ARTICLE 16 (4) OF TOE in answering the scathing criticisum made in the CONSTITUTION course of the debate and explaining the significance of clause (3) of Article 10 with the qualifying word Article 16 (4) expressly permits the State to make 49

'backward' and insisting the sustonanee of Ihe said fundamenlal right in ihe Vv'ay it’> Vv=hich it clause emphatically expressed l-sis views as follows: was passed by this A ssem b ly......

"I a ni not prepared to say that this Somebody asked rne; "Wzhnt is a backw ard Constitution will not give rise to question community"? Well, I think any one who whicli will involve legal interpretation or reads the language of the draft itself will judicial interpretation, hi fact, 1 would like to find that we have left it to be determined by ask Mr. Krishnamachari if he can point out to each local Government. A backward me any instance of any Constitution in the community is a community zvhich is backward world which has not been a paradise for in the opinion of the Government. M y lawyers. I would particularly ask him to refer honourable Friend Mr. T.T. Krishnamachari to the vast storehouse of law reports with asked me whether this rule will be regard to the Constitution of the United States, justiciable. It is rather difficult to give a Canada and other countries, I am therefore not dogmatic answer, personally I think it asham ed at all if this Constition hereafter for would be a jusiciable matter. If the local purposes of interpretation is required to be Government included in this category of taken to the Federal Court. That is the fate of reservations such a large number of seats; I every Constitution and every Drafting think one could very well go to the Federal Committee. 1 shall therefore not labour that Court and the Supreme Court and say that point at all." the reservation is of such a magnitude that the rule regarding equality of opportunity While winding up the debate he said : has been destroyed and the court will then come to the conclusion whether the local "... the Drafting Committee had to produce a Government or the State Government has formula which would reconcile these three acted in a reasonable and prudent manner.' points of view, firstly, that there shall be equality of opportunity, secondly that theix (emphasis supplied) slmll be resei-valions in favour of certain (Constituent Assembly Debates, Volume VII communities which have not so far hid a 'premier Pages 700-703) r look-in' so to say into the administration...... Aiter the debate, tv/o motions were put to vote but they were negatived. The unexpurgated draft that no better formula could be produced tl-ian Article 10 (3) corresponds to the present Article 16 the one that is embodied in clause (3) of Article (4) of the Constitution. It has now become necessary 10 of the Constitution; they will find that the for this Court to interpret and explain the words view of those who believe and hold that there 'backward class'. shall be equality of opportunity has been ambodied in sub-clause (1) of Article 10. It is a There is a galaxy of decisions of this Court, generic principle...... explaining the words 'backward class' as occurring Supposing for instance, we are to concede in under Article 16 (4) in relation to Articles 16 (1) and 16 (2) which I shall recapitulate in my endeavour to full the demand of those communities who have not been so far employed in the public meet the arguments advanced by the learned services to the fullest extent, what would really counsel appearing for various parties in interpreting happen is, we shall be completely destroying the words 'backward class'. the first proposition upon which we are all The Government both in the earlier O.M. and the agreed, namely, that there shall be an equality subsequent amended O.M. has used the expression of opportunity ...... 'socially and educationally backward classes' ...... I am sure they will agree that unless thereby qualifying the word 'backward' as 'socially you use some such qualifying phrase as and educationally backward' though in the second "backward" the exception made in favour of amended O.M., the 'economic backwardness' is reservation will ultimately eat up the rule alone taken as a ground for providing reservation altogether. Nothing of the rule will remain. for the economically backward section of the That I think, if I may say so, is the justification people not covered by the same of reservation why the Drafting Committee undertook on its meant for 'socially and educationally backward own shoulders the responsibility of classes'. introducting the word 'backward' which, 1 admit, did not originally find a place in the The word 'backward' is very wide bringing 50 within its Nd the social backwardness, educational word 'class'. Mr. K.K. Venugopal, the learned senior backwardness, economic backwardness, political counsel while concluding his arguments has stated that backwardness and even physical backwardness. caste if it is to be taken as one of the criteria, it must be at the end point and not the starling point. Therefore, To assimilate the expression 'class' in its legal seiise, even at the threshold, it has become obligatory to the said expression should be strictly construed and decide the question whether 'caste' should be tested on the orinciples of agreed criteria which throw completely excluded from being considered as one of a flood light on its true meaning. In interpreting the the criteria, if not to what extent caste would become words 'backward class'. I am sorry to say there is no relevant in the determination and ascertainment of uniform and consistent view expressed by the Court by 'socially and educationally backward class', there is a laying down a rigid formula exhaustively listing out galaxy of decisiors of this Court in explaining the the specific criteria. The battery of tests that are w ords 'hachuard class' and 'caste' which 1 shall refer to recognised by the Courts in determining 'socially and at the appropriated place. educationally backward classes' are caste, nature of traditional occupation or trade, poverty, place of Meaning of 'Class' and 'Caste' residence, lack of education and also the sub-standard education of the candidates for the post in comparison to identify the diversity of meanings of the words to the average standard of candidates from general 'class' and caste' that constitute their inner complexity; category. These factors are not exhaustive. to formulate the questions about them that are disputed and to examine as well as to assess the As to the questions (1) whether 'caste' can be taken opposed voices in controversies that have ensued and as a criteria in determining and identifying a to understand their semiology, I shall first of all 'backward class' in Hindu society and (2) whether it reproduce the meanings of those words as lexically could be a pre-dominant factor or one of the factors in defined. identifying the backward class, there is a cleavage of opinion. 1 • The Oxford English Dictionary (Volume II): Ray, C.J. in State of Uttar- Pradesh v. Pnideep Tandon Class and Chs. 1975 (2) SCR 761 at 766 has gone to the extent y of saying that "when Article 15 (1) forbids (2) a division or order of society according to discrimination on grounds only of religion, race, status; a rank or grade of society; . . . (6) a caste-caste cannot be made one of the criteria for number of individuals (persons or things) determining social and educational backwardness. If possessing common attributes, and grouped caste or religion is recognised as a criterion of social together under a general or 'class' name; a and educational backwardness Article 15 (4) will kind, sort, division. stultify Article 15 (1)". 7'he effcct of this judgment is that caste can never be a criterion. This decision has Caste also ruled that the place of habitation and the (2) one of the several hereditary classes into environment are also the determining factors in which society in India has from time judging the social and educational backwardness. imemoriae been divided; the members of each A good deal of arguments was advanced on the caste being socially equal, having the same question whether caste can be the sole if not the religious rites, and generally following the dominant factor or at the least one of the factors or not same occupation or profession; those of one at all. Whilst antireservationists contend that the caste have no social intercourse with those of Report should be thrown overboard on the ground another; (3) the system or basis of this division that the reservation is made on the caste criterion, the among the Hindoos. proreservationists would forcibly refute that In Webster Comprehensive Dictonary (International contention making counter submissions stating, Edition), the meaning of the words is given as follows: inter-alia, that castc can justifiably be take as an important and dominant factor if not the sole factor in Class determining the social and educational backwardness (1) A number or body of persons with for various reasons as pointed out in the Report. Since common characteristics: the educated class; (2) backwardness is a direct consequence of caste status social rank; caste. and the discrimination perpetuated against the socially backward people is based on the caste system, the caste Caste criterion can never be divested while interpreting the (1) one of the hereditary classes into which society is divided in India (2) the separated from others by differences of prtriciple of practice of such division or thse wesHh, het'ediiar)' rank or privileges, or by position it confei-s; (3) the division of scKiely on profession or employment, having special artificial grounds; a social class. significance when applied to the artificance when applied to the artificial divisions or Acci^ording to Webster's Encyclopedic Unabridged social classes into which the Hindus are Diction^y of the English Language, meaning of the rigidly separated. words Mass' and 'caste' is as follows: Black Lazo Dictionary (Sixth Edition) Centennial Class Edition (1891-1991) gives the meaning of 'class' thus:

(1) a number of persons or things regarded as Class fonning a group by reason of common attributes, characteristics, qualities, or traits, A group of persons, things, qualities, or kind, sort (2) any division of persons or things activities having common characteristics or according to rank or grade ... (9) Social, a social attributes. stratum sharing basic, economic, political or The word 'caste' is defined in Encyclopedia cultural characteristics and having the same Americana (5) thus: social position ... (10) the system of dividing society; caste ... Caste

Caste Caste is a largely, exclusive social class, membership in which is determined by (1) Social, an endogamous and hereditary birth and involves particular customeiy social group limited to persons of the same restrictions and privileges. The word rank, occupation, economic position etc. and derives from the Portuguese casta, meaning having mores distinguishing it fix>m other such 'breed', 'race', or 'kind' and w as first used groups, (2) any rigid system of social to denote the Hindu social classification on distinctions (2) Hinduism, any of the four tlie Indian subcontinent. While this remains social divisions, the Brahman, Kshatriya, the basic connotation, the word 'caste' is Vaisya and Sudra, into which Hindu society is also used to describe in whole or in part rigidly divided, each caste having its own social system that emerged at various times privileges and limitations, transferred by in other parts of the world. inheritance from one generation to the next (3) any class or group of society sharing common cultural features .... (6) pertaining to The meaning of the word 'backward' is defined characterised by caste; a caste society; a caste in lexicons as 'retarded in physical, material or system; a caste structure. intellectual development' or 'slow in growth or development; retarded'. In Corpus Juris Secunduni (14), the meaning of words 'class' and 'caste' is given thus: A careful examination of the meaning of the words 'class' and 'caste' as defined above by the Class various dictionaries, perceivably shows that these two words are not synonymous with each other and A number of objects distinguished by common they do not convey the same meaning. characters from all others, and regarded as a collective unit or group, a collection capable of See R. Chitralekha and Anr. V. Stale of Mysore & a general division, a number of persons or Ors. 1964 (6) SCR 368 at 388 and Triloki Nath v. J & K things ranked together for some common State 1969 (1) SCR 103 at 105 and K.C. Vasanth Kumar purpose or possessing some attribute in V. Karnataka 1985 Supp. (1) SCR 352 common; the order of rank acording to which The quintessence of the above definitions is that persons or things are arranged or assorted;...... a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of Caste intellect and ability will fall withan the ambit of 'any A class or grade, or division of society backward class of citizens' under Article 16 (4) of the 52

Const Hmon. in relation to 'Scheduled Castes' which is defined in Article 366 (24). However, the word 'caste' in Articles In course of debate in the Parliament on the 15 (2), 16 (2) and 29 (2) does not include 'scheduled intend of Article 16 (4), Dr. 8.R. Ambedkar, the caste' but it refers to a caste within the ordinary then Mnister for Law expressed his views that meaning of caste. The word 'scheduled caste' came into "back\^2rd classes which are nothing else but a being only by the notification of President under collect lOii of certain castes." Article 341. It would be appropriate, in this connection, The next important, but central point at issue is to recall the observationof Fazal Ali, J in his separate w h e th e r caste by the name of which a group of persons but concurring judgment in State of K aala and Others v. are identified, can be taken as a criterion in N.M. Tlwmas and Others 1976 (1) SCR 906 wherein at deternnining that caste as 'socially and educationally page 996, he has said that "the word 'caste appearing backw ard class' and if so, will it be the sole or after 'scheduled' is really a misnomer and has been dominant or one of the factors in the determination of used only for the prupose of identifying this particular "social and educational backwardness". class of citizens which has a special history of several hundred years behind it". Before embarking upon a discussion relating to this aspect, it is pertinent to note the views of certain States M athew, J in his separate jud gm en t in the sam e as regards the caste criterion and economic criterion for case (Thomas) has expressed that "it is by virtue of the identifying the 'backwardness'. notification of the President that the 'Scheduled Castes' came into being". In reply to a questionnaire issued by the Second Backward Classes Commission, the State of Assam, Reference also may be made to the observation of Andhra Pradesh, Bihar, Gujarat, Karnataka, Kerala, Krishna Iyer, J in Akhil Bhartiya Soshit Karamchari Sangh Maharashtra, Punjab, Rajasthan and Uttar Pradesh V. Union of India and Others 1981 (2) SCR 185 at 234 stated that caste should be used as one of the criterion where he has said: for identifying backwardness. Delhi, Dadra and Nagar "Terminological similarities arc an illusory Haveli, Haryana, Himachal Pradesh and Madhya guide and we cannot go by verbal Pradesh stated that caste should not bo made a verisimilitude. It is, very doubtfijl whether the criterion of backwardness. Bihar, Gujarat, Himachal expression caste"' will apply to Scheduled Pradesh,.Kerala, Punjab,*' Rajasthan and Uttar Pradesh Castes. At any rate. Scheduled Tribes are suggested low economic status as one of the significant identified by their tribal denomination. A tribe tests, while Delhi, Dadra and Nagar Haveli and cannot be equated with a caste. As stated Haryana desired the economic factor to be the solo earlier, their are sufficient indications in the determinant of backwardness. Constitution to suggest that the Scheduled Articles 15 (4), 16 (4) and’340 (1) do not speak of Castes are not mere castes." 'caste' but only 'class'. The learned counsel particularly There is a long line of decisions dealing with the those appearing for anti-reservationists have stressed significance of the word 'caste' in relation to Hindus as that if the makers of the Constitution had really being one of the relevant criteria, if not the sole intended to take 'caste or castes' as conveying the criterion for ascertaining whether a particular person meaning of socially and educationally backward class, or group of persons will fall within the wider they would have incorporated the said word, 'caste or connotation of 'class'. castes' in Articles 15 (4) and 340 (1) as 'socially and educationally backw^ard caste or castes' instead of In M.R. Balaji V State of Mysore 1963 (Suppl) 1 SCR 'class or classes' as they have adopted the expression in 439. Gajendragadkar, J observed, "Though castes in the case of 'scheduled castes and scheduled tribes'. relation to Hindus may be a relevant factor to consider Similarly in Article 16 (4) also, they would have used in determining the social backwardness of groups or the words as 'backward caste or 'castes' instead of classes of citizens, it cannot be the sole or the dominant 'backward class'. It has been futher ut^ed that the very test in that behalf." fact that the framers of the Constitution in their Subba Rao, J speaking for the majority of the wisdom thought of using a wider expression, 'classess' Constitution Bench in R. Chitralekha v. State of Mysore in Article 15 (4) and 340 (1) and 'class' in Article 16 (4) 1964 (6) SCR 368 at 389 has staled: alludes that they did not have the intention of equating classes with the castes. " ...... w hat w e intend to em phasize is that under no circumstances a "class" can be The worci 'caste' is not used in the Constitution as equated to a "caste", though the caste of an idicative of any section of people or community except individual or a croup of individual mav be 53

cansidc'rcd along v.’ilh other relevant factors in Shah, J speaking for the ConsJriiution BtMich i.as putting him in a particular class. Wo would reiterated the meaning of the worcJ 'class' as defined in al6o like to make it clear that if in a given the case of Sagar and added that " fo r the purpose of situation caste is excluded in ascertaining a Article 16 (4) in determining whether a section foiTns a class within the meaning of Art. 15 (4) of the class, a test solely based on caste, community, race, Constitution, it does not vitiate the religion, sex, descent, place of birth or residence cannot classification if it satisfied other tests." be adopted, because it would directly offend the Constitution." M udholkar, J in his dissenting judgm ent in considering the caste in determination of the backward Further, this judgment reaffirms the view in Minor class, has expressed his view thus: P. Rajendran's case to the effect that if the members of an entire caste or community at a given time are " ...... it would not be in accordance either socially, economically and educationally backward that with cl. (1) of Art. 15 or cl. (2) of Art. 29 to caste on that account be treated as a backward class. require the consideration of the castes of This is not because they are members of that caste or persons to be borne in mind for determining community but because they form a class. what are socially and educationally backward classes. It is true that cl, (4) of Art. 15 contains a H egde, J in A. Peeriakaruppan. etc. v. State of Tamil non-obstante clause with the result that power Nadu 1971 (2) SCR 430 at 443 has observed: corfened by that clause can be exercised "A caste has always been recognised as a despite the provisions of cl. (1) of Art. 15 and class." cl. (2) of Art. 29. But that does not justify the inference that castes have any relevance in Vaidialingam, J in State of Andhra Pradesh and Ors. determining what are socially and V. U.S.V. Balram etc. 1972 (3) SCR 2 4 7 in his conclusion educationally backward communities." upheld the list of Backward Clasis in that case as they satisfied the various tests, which have been laid down Wanchoo, C.J. speaking for the Constitution Bench by this Court for ascertaining the social and in Minor P. Rajendran V. State of madras & Ors. 1968 (2) educational backwardness of a class even though the SCR 786 af 790 pointed out that "it the reservation in said list was exclusively based on caste, (emphasis ours) question had been based only on caste and had not taken into account the social and educational Chief Justice Ray in Kutnari K.S. Jayasree & Anr. V. backwardness of the caste in question, it would be llte State of Kerala & Anr. 1977 (1) SCR 194 was of the violative of Article 15 (1). But it must not be forgotten view that "In ascertaining social backwardness of a that a caste is also a class of citizens and if the caste as a class of citizens it may not be irrelevant to consider the whole is socially and educationally backward, caste of the group of citizens. Caste cannot however be reservation can be made in favour of such a caste on made the sole or dominant test..... " the ground that it is a socially and educationally Speaking for the Bench in U.P. State v. Pradip backward class of citizens within the meaning of Tandon Ray, the learned Chief Justice after stating that Article 15 (4)". (emphasis supplied). neither caste nor race nor religion can be made the The learned Chief Justice in support of his above basis of classification for the purposes of determining observation has placed reliance on Balaji. social and educational backwardness within the meaning of Article 15 (4) when Ai-ticle 15 (1) forbids , In State of Andhra Pradesh V. P. Sagar 1968 (3) SCR discriminationon grounds only of religion, race, caste - 595, if has been observed: observed that caste cannot be made one of the criteria " ...... the expression "class" means a for determining social and educational backwardness homogeneous section of the people grouped and that if the caste or religion is recognised as a together because of certain likenesses or criterion of social and educational backwardness. common traits and who are identifiable by Article 15 (4) still stultify Article 15 (1). Further be some common attributes such as status, rank, observed that "It is true that Article 15(1) forbids occupation, residence in a locality, race, discrimination only on the ground of religion, race, religion and the like. In determining whether a caste but when a classification taken recourse to caste particular section forms a class, caste cannot be as one of the criteria in determining socially and excluded altogether. But in the determination educationally backward classes, the expression'classes' of a class a test solely based upon the caste or in that case violates the rule of exjiressio unius est community cannot also be accepted." exclusio altaius. The socially and educationally backw ards classes of citizi^ns are groups other than hi Triloki Nath V. J & K State (II) 1969 (1) SCR 103 54

groUp:> based on casle." 1'here arc various sects or separate group of people 'I K’ Icamc-d Chief Justice also recognised Ihe in Muslim communities being identified by their meaning of the expression "classes of citizcns" in lino occupation such as Pinjara in Gujarat, Dudekula with the obsen^ation made in Triloki Nath (I!) and Sugar (cotton beaters) in Andhra Pradesh, Labbais, Rowthar (supr^) and explained the traits of social backwardness, and M arakayar in Tamil N adu. econ^rr»ic backwardness and educational Though Christianity doew not acknowledge caste back‘'^ardness. system, the evils of caste system in some States are as S^e also Akhil Bhartiya Soshit Knramchari Sangh prevalent as in Hindu society especially among the (supr^) and K.C. Vasanth Kumar (supra). converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Tfiough there is tremendous ambivalence in a host Similarly, in Tamil Nadu, there are Pillai Christians, of judgments rendered by this Court, not even a single Marvar Christians, Nadar Christians and Harijan judgment has held that class has no relevance to caste Christians etc. That is to say all the converts to at all 'vherever caste system is prevalent. Christianity have not divested or set off themselves Collating the above said views expressed by this from their caste labels and crossed the caste barrier but Court in a catena of decisions as regards the relevance carry with them the banners of their caste labels. Like and significance of the caste criterion in the field of Hindus, they interact and have their familial identification of 'socially and educationally backward relationship and marital alliances only within the classes' it may be stated that caste neither can be the converted casite groups. sole criterion nor can it be equated with 'class' for the In Tamil Nadu, after persistent effort and agitations prupose of Article 16 (4) for ascertaining the social and some of the sections of people belonging to some castes educational backwardness of any section or group of or communities converted either to Islam or people so as to bring them within the wider Christianity have become successful in having them connotation of'backward class'. Nevertheless 'caste' in included in the list of 'backward classes' on par with Hindu society becomes a dominant factor or primary their corresponding Hindu caste people. criterion in determining the backwardness of a class of citizens. Unless 'caste' satisfies the primary test of The Government of Tamil Nadu on the basis of the social backwardness as well as the educational and report of the Secopd Backward Classes Commission economic backwardness which are the established and issued a revised list of 'backward classes' by GO Ms. accepted criteria to identity the 'backward class', a No. 1564 (Social welfare Department) dated 30th July caste per se without satisfying the agreed formulae 1985 where in the following castes and communities generally cannot fall within the meaning of 'backward converted to Islam and Christianity arc included for class of citizens' under Article 16 (4), save in given the purpose of reservationunder Articles 15 (4) and 16 exceptional circumstances such as the caste itself being (4) of the Constitution, identifiable with the traditional occupation of the Serial No. lower strata - Indicating the social backwardness. 26 Converts to Christianity from Scheduled Castes True, the caste system if, predominantly known in inespective of the generation of conversion for Hindu society and runs through the entire fabric of the the purpose of reservation of seats in Educational social structure. Therefore, the caste criterion cannot be Institutions and for seats in Public Services. divested from the other established and agreed criteria in identifying and ascertaining the backward classes. 98* Labbais including Rowthar and Marakayar (whether their spoken language is Tamil or It is said that the caste system is unknown to other U rdu.) communities such as Muslims, Christians, Sikhs, Jews, Parsis, Jains etc. in whose respective religion, the caste 100 Latin Catholics...... : in Kanyakumari district and system is not recognised and permitted. But in Shenkottah taluk of Tirunelveli district. practice, it cannot be irrefutably asserted that Islam, 110 Meenavar, Parvatharajakulam, Pattanavar, Christianity, Sikhism are all completely immune from Sembadavar (including converts to Christianity). casteism.

There are marked distinctions in one form or 115 Mukkuvar or Kukayar (including converts to aiiOthcr among various sections of the Muslim Christianity) community especially among converts to Islam though 118 Nadar, Shanar and Gramani, including Christian Islam does not recognise such kind of divisions among Nadar, Christian Shanar and Christian Gramani. Muslims and professes only common brotherhood. 55 136 paravar including converts to Chrislianily (except equality and justice, denounces all sorts of social ifi Kanyakumari district and Shenkottali ta’uk of discrimination between man and man, strongly Tirunelveli district where the community is a advocates the equality and parity i,, all humanity and Scheduled Caste.) propagates that caste, birth or colour cannot make one * Item No. 98 denotes Muslim community. superior or inferior. All the Gurus of Sikhism have advocated and articulated the concept of equality of another G.O MD No. 1565 dated 30th July 1985, man as the basis of egalitarian society. the Government of Tamil Nadu directed the Notwithstanding Sikhism is violently against casteism, reservation of seats at 50% for Backv^^ard Classes and some converts to Sikhism from the Scheduled Castes 18% for Scheduled Castes and Scheduled Tribes in still retain their caste label. respect of all courses in all kinds of educational institutions as well as in all Services in the Government Thus even among non-Mindus, there are of Tamil Nadu. Thereafter, another G.O. M No. 558 occupational organisations or social groups or sects dated 24th February 1986 on the representation of which are having histroical background/evolution. Christian converts was issued, the relevant paragraphs They too constitute social collectives and form separate of which read as follwos: classes for the purposes of Article 16 (4).

"(5) Accordingly, the Government declare that. Though in India, caste evil originated from Hindu In addition to the Christian Converts religion that evil has taken its root so deep in the social mentioned in paragraph one above, the structure of all the Indian communities and spread its persons belonging to the other Christian tentacles far and wide thereby leaving no community communities who are converts from any from being influenced by the caste factor. In other Hindu community includded in the list of words, it cannot be authoritatively said that some of Backward Classes also will be considered as the communities belonging to any particular religion socially and educationally backward for the are absolutely free from casteism or at least from its purposes of Article 15 (4) of the Constitution. shadow. The only difference being that the rigour of caste varies from religion to religion and from region (6) The Government also declare that, in to region. Of course, in some of the communities, the addition to the Christian converts mentioned influence of the csste factor may be minimal. So far as in paragraph one above, the persons belonging the Hindu society is concerned, it is most distressing to to the other Christian communities who are note that it receives-sanction from the Hindu religion converts from any Hindu community included itself and perpetuated all through. in the list of Backward Classes also will be considered as Backward Classes of citizens and Reference may be made to paragraph 12.11, to 12.16 that they are not adequately represented in the of Chapter XII of the Report. services under the State with reference to After identifying in paragraph 12.18, the Article 16 (4) of the Constitution." Commission has laid down the following tests for The Christian converts mentioned in the above identifying non-Hindu OBCs: G.O.M. relates to the list of Christian converts ''12.18 After giving a good deal of thought to mentioned G.O, M No. 1564 dated 30th July 1985. these difficulties, the Commission has evolved As per the statistics given in the Report of the the following rough and ready criteria for Second Backward Classes Commission, in Tamil Nadu identifying non Hindu OBCs:- out of 27,05,960 people belonging to Muslim minorities i) All untouchables converted to any 25,60,195 are included in the backward list which non-Hindu religion; and works out to 94.61% of the total Muslim population of the State, Similarly, among Christians, out of 31. 91, 988 ii) Such occupational com m unities which of the total population, 25, 48, 148 are included in the are known by the name of their backw'ard list which works out to 79.83%, traditional hereditary occupation and whose Hindu counterparts have been The Nav. Budhists, and Neo Budhists the majority included in the list of Hindu OBCs, of whom are converts from Scheduled Castes enjoy the (Examples: Dhobi, Teli, Dheemar, Nai, reservation on the ground that their low status in that Gujar, Kumhar, Lohar, Darji, Badhai, community have not become advanced equal to the etc.)" status of others and their social backwardness is not changed inspite of the change of their religion. Even assuming that the caste factor would not furnish a reliable yardstick to identify 'socially and Sikhism, no doubt, strictly believes in social 56

cd v^!^5lior.ally groups' in the comnuinilies other than placed on par with the advanced section of the people, Hindu community as there is no commionness since all the caslc lab<^l among Hindus will continue to serve as sec'tions of people among Bud his ts, Muslims, Sikhs and a primar>' indicator of its social backwardness. Christians etc. and as the respective religion of those corntnunities do not recognise the caste system, yet on Though 1 am not inclined to exhaustively elaborate the principle of the other agreed criteria such as the untold agony and immeasurable sufferings trac^itional occupation, trade, place of residence, undergone by the people in the lower strata under the poverty lack of education or economic backwardness label of their respective caste, 1 cannot avoid but citing etC/ the social and economic backwardness of those a jarring piece of information appearing in the Report. corninunities could be identified independently of the The noted and renowned Sociologist Shrt J.R. Kmnhle in caste criterion. Once these 'casteless socities' are tested Rise & Awakening of Depressed Classes in India published on the anvil of the established relevant criteria de hors by National Publishing House, Nezv Delhi has quoted a the caste criterion, there may not be any difficulty in passage from the issue of 'Hindvi' dated 24.12.1932 as identifying the social and educational backwardness of an example of visual pollution existing in Tinnevelli the section of the people of that community and (Tamil Nadu) which the Mandal Commission has classifying them as 'backward class of citizens' within extracted in Chapter IV vide para 4.13 of its report: the meaning of Article 16 (4). " 4 .1 3 ...... In this (Tinnevelly) district there In this connection, reference may be made to the is a class of unseeables called purada vannans. observation of this Court in Chltralekha (supra) that They are not allowed to come out during day " ...... if in a given situation caste is excluded in time because their sight is considei*ed to be ascertaining a class within the meaning of Article 15 (4) pollution. Some of these people who wash the of the Constitution, it does not vitiate the classification clothes of other exterior castes working if it satisfied other tests." between midnight and day-break, were with difficulty persuaded to leave their houses to More often than not, a question that is put forth is interview," should the caste label be accepted as criterion in ascertaining the social and educational backwardness Does not the very mention of the caste name of a group of persons or community. No doubt, it is 'purada vannans' indicate that the people belonging to felt that in identifying and classifying a group of that community were so backward, both socially, persons or community as 'socially and educationally economically as well as educationally beyond backward class', it should be done de hors the caste compreshension? Would the children of those people label. But all those who address such a question turn a who were not allowed to come out during day time blind eye to the existing stark reality that in the Hindu have gone to any school? Does not the very fact that society ever sincc the caste system was introduced, till those people were treated with contempt and disgrace ■today, the social status of Hindu is so w oven or as if they were vermin in the human form freeze our inextricably intertwined and fused with the caste blood? Alas! What a terrible and traumatic experience system to such an extent that no one in such a situation it was for them living in their hide-outs having can say that the caste is not a primary indicator of occasional pot-luck under pangs of misery, all through social backwardness and that social backwardness is mourning over their perilous predicament on account not identifiable with reference to the caste of an of this social ostracism. When people placed at the base individual or group of persons or community. level in the hierarchical caste system are living like Howerver, painful and distasteful, it may be, we have mutes, licking their wounds - caused by the deadening to face the reality that under the hydraulic pressure of weight of social customs and mourning over their fate caste system in Hindu society, a major section of the for having bom in lower castes - can it be said by any Hindus under multiple caste labels are made to suffer stretch of imagination that caste can never be the socially, educationally and economically. There primary criterion in identifying the social, economic appears no symptoms of early demise of this and educational backwardness? Are not the social and dangerous disease of caste system or getting sway economic activities of Shudras and Panchamas from the caste factor inspite of the fact that many (untouchables) severely influenced by their low caste reformative measures have been taken by the status? Government. Unless this caste system, unknown to There is no denying that many of the castes are other parts of the world is completely eradicated and identified even by their traditional occupation. This is all the socially and educationally backward classed to so because numerous castes arranged in a hierarchical whichever religion they belong inclusive of Scheduled order in the Hindu social structui’o are tied up with Castes and Scheduled Tribes are brought up and their respective particular traditional occupation 57 consequent upon the crealion of four Varnas on the criterion even at the starlii’ig point ijv ascertaining it. conccpt of divine origin of caste system based on the social, economic and educational backwardness. To say Vedic principles. Can it be said that the propagation that in the effort of ascertaining social backwardness, and practice on the caste - based discrimination; the caste should be considered only at the end point, is a marked ^^ividing line between upper caste Hindus and misnomer and fallacious. Because after identifying and Shudras/ and the practice of untouchability inspite of classifying a group of persons belonging to a particular the Constitutional declaration of abolition of caste by testing with the application of the relevant untouchability under Article 17 are completely criteria other than the caste criterion, the identification eradicated and erased? Can it be said that the social of the caste of the class of persons is no more required backwardness has no relation to caste status? The as in the case of identification of casteless society as a unchallengeable answer for the first question would be backward class. In fact, this Court in a number of in the negative and for the second question, the answer decisions has held that a caste may become a would be that social backwardness does have a 'backward class' provided that caste satisfies the test of relation with the caste status. backwardness.

It is not germane for my purpose to enter into a It is apposite, in this context, to make reference of lengthy deliberation as to how religion and mythology the views expressed by the Mandal Commission were used for founding the social institution in Hindu stating that there is "a close linkage between caste society containing so much of inequalities and ranking of a person and his social educational and discrimination among the people professing the same economic status...... In India, therefore, the low ritual Hindusism. caste status of a person has a dircct bearing on his social backwardness". The Mandal Commission in Chapter IV of its report under the heading ^'Social Backwardness and Chinnappa Reddy^ J in Vasanlh Kumar points out Caste" has concluded its view with a query under that the social investigator " ...... may freely perceive paragraph 4.33 of its Report (Volume I) thus: those pursuing certain 'lowly' occupation as socially and educationally backward classes/' "In view of the foregoing will it be too m uch to say that in the traditional Indian society social In passing, I would like to m ake reference to the backwardness was a direct consequence of pith and substance of the report of Kaka Kalelkar, caste status...... according to which the relevant factors to consider in classifying 'backward class' would be their traditional Though the Government both on the Central and occupation or profession, the percentage of literary or State level have taken and are taking positive steps the general educational advancement made by them; through law and other reformative measures to the estimated population of the community, and the eradicate this social evil, it is heart-rending to note that distribution of the various communities throughout in many circumstances, the caste system is being the State or their concentration in certain areas. perpetuated instead of being banished for the reasons best known to those perpetrators. WHAT THE EXPRESSION "BACKWARD CLASS" It is common knowledge that in Hindu society, if a MEANS? person merely mentions the name of a traditional In Minor P. Rajendran (supra), Wanchoo, CJ speaking occupation, another by his empirical knowledge can for the Constitution Bench has stated that "a caste is immediately identify the caste by the said traditional also a 'class of citizens' and that reservation can be occupation. To illustrate, the traditional occupation of made in such a case provided if that caste as a whole is washing clothes is identified with washerman (Dhobi)- socially and educationally backward within the caste, traditional occupation of hair-cutting is meaning of Article 15 (4)". identified with Barber (Nai) - caste, traditional occupation of pottery is identified with Potter Reference may also be made to Triloki Nath (II) (Kumhar's caste), and so on. Of course in modern (sujjra) and BaJaram. times, persons belonging to any particular caste might The facts in Balaram (cited abaoe) disclose that for have shifted over to other occupation leaving their the admission to the integrated M.B.B.S. Course in the traditional occupation but generally speaking, the Government medical colleges in Andhra Pradesh, the occupation is identified with the caste and vice-versa. Government issued a GO making a reservation of 25% Many backward castes have taken 'agriculture' as their of seats in favour of 'backward classes' as profession. In such an unquestionable situation, in my recommended by the Andhra Pradesh Backward opinion, there can be no justification in saying that Classes Commission besides other reservations caste in Hindu society cannot serve as primary indusivt"^ of reservation for Schcduicd Castes and earlier O.M. Issued on 13.8.90 reads t liat with a view to Schedulc^ti Tribes. The reserv^ation for the 'backward providing certain weightage to socially and classes' "as challenged on the ground that the educationally backward classes in the services of the Government Order violated Article 15 (1) read with Union and their Public Undertakings, as recommended Article 2-^ and that the reservation was not saved by by the Commission, the orders are i<>sucd in the terms Article 15 (4). The High Court held that the mentioned therein. The said O.M. also expalins that Commission had merely enumerated the various "the SEBC would comprise in the first phase the castes persons belonging to a particular caste as 'backward and communities which are common to both the lists, classes' 'vhich was contrary to the decision of this in the report of the Commission and the State Court and violative of the constitutional provisions Governments' list". In addition it is said that a list of and consequently struck down the GO. The such castes/ communities is being issued separately. Government preferred an appeal before this Court. The subsequent amended O.M. dated 25.9.91 states Vaidialingam, J speaking for the Bench observed; that in order to enable the 'poorer sections' of the SEBCs to receive the benefits of reservation on a "In the determ ination of a class to be grouped as preferential basis and to provide resen'ation for other back'vard, a test solely based upon caste or economically backward sections of the people not community cannot be valid. But, in our opinion, covered by any of the existing schemes of reservation, though Directive Principles contained in Art. 46 the Government have decided to amend the earlier cannot be enforced by Courts, Art, 15 (4) will have Memorandum. Thus this amended O.M. firstly speaks to be given effect to in order to assist the weaker of the 'poorer sections' of the SEBCs and secondly sections of the citizens, as the State has been about the economically backwarci sections of the charged with such a duty. No doubt, we are aware people not covered by any of the existing schemes of that any provision made under this clause must be reservation. However, both the O.M.s Vv^hile referring within the well defined limits and should not be on to the SEBCs, do not includc the 'economic the basis of caste alone. But it should not also be backwardness' of that class along with 'social and missed that a caste is also a class of citizens and that a 'educational backwardness'. By the amended O.M., the caste as such may be socially and educationally Government while providing reservation for the backw ard. If after coUccting the necessaty data, it is backward sections of the people not covered by the found that the cxistc as a whole is socially and existing schemes of reservation meant for SEBCs, educationaUy backiuard, in our opinion, Ih^ resci'vation classifies that section of the people as 'economically made of such pa'sons xuill have to he upheld backward', that is to say that those backward sections )iotzvitl%standing the fact that a fezo indixjiduals in that of the people are to be identified only by their group may he both socially and educationally above the economic backwardness and not by the lest of social general average. There is no gainsaying the fact that and educational backwardness, evidently for the there are numerous castes in the country, which reason that they are all socially and educationally well arc socially and educationally backward and, advanced. therefore, a suitable provision will have to be m ade by the State as charged in Art. 15 (4) to safeguard Coming to Article 16 (4) the words 'backward class' their interest. are used with a wider connotation and without any qualification or explanation. Therefore, it must be (emphasis supplied) construed in the wider perspective. Though the OMs The decisions which wc have referred to above speak of social and educational backwardness of a support the view that a castc is also a class of citizens class, the primary consideration in identifying a class ^and that if that caste satisfies the requisite tests of and in ascertaining the inadequate representation of backwardness, then the classification of that caste as a that class in the services under the State under Article backward class is not opposed to Article 16 (4) 16 (4) is the social backwardness which results in notwithstanding that a few individuals of that caste are educational backwardness, both of which culminate in socially and educationally above the general average. I economic backwardness. The degree of importance to am in full agreem ent with the above view. be attached to social backwardness is much more than the importance to be given to the educational The composition and terms of reference of the backwardness and the economic backwardness, Second Backward Classes Commission show that the because in identifying and classfying a section of Commission was appointed to investigate the people as a backward class within the meaning of conditions of socially and educationally backward Article 16(4) for the reservation of appointments or classes within the territory of India but not the socially, posts, the 'social backwardness' plays a predominant economically and educationally backward classes. The role. 5V

Ray, C J. in jnynskrcc is of the* view that ''Social after most com[)rehensive enquires anci sui vcy in the backward ness can contribute to educational socio-educalional fields with tlie association and help backwardricss and educational backwardness may of top social scientists and specialists in the country as perpetuate social backwardness. Both are often no well as experts from a number of disciplines, the fTiore than Hic? inevitable corollaries of the extreines of Commission had prepared the "Indicators (Criteria) poverty and the deadening weight of custom and for Social and Educational Backwardness" on the tradition." analysis of data and submitted its report. The relevant paragraphs 11.23, 11.24 and 11.25 show^ing the criteria The very fact that the Commission itself has given a for identifycation of backwardness are as follows: weightage of 12 points to 'social backwardness' and 6 points to 'educational backwardness; and 4 points to "Indicators (Criteria) for Social and Educational 'economic backwardness' (vide paragraph 11.24 of Backioardness Chapter XI) shows in very clear terms that 'social backwardness' is taken as a predominant factor in 71.23 As a result of the above exercise, the ascertaining? the backwardness of a class under Article Commission evolved eleven 'Indicators' or 16 (4). 'criteria' for determining social and hi M.R. Balaji v State of Mysore 1963 (Sujypl.) 1 SCR educational backwardness. These 11 439 at page 454 Gajendragadkar, J observed that 'Indicators' were grouped under three broad "economic backwardness might have contributed to heads, i.e. Social, Educational and Economic. social backwardness ...... " This observation tends to They are:- show that Gajendragadkar, J was of the view that A. Social economic backwardness may contribute to social backwardness. With respect to the learned Judge, I am (i) Castes/Classes considered as socially unable to agree with his view. backward by others.

Desai, J in Vasanth Kumar has expressed a similar (ii) Castes/Classes which mainly depend on view that if economic criterion for compensatory manual labour for their livelihood. discrimination or affirmative action is accepted. It (iii) Castes/Classes where at least 25% females would strike at the root cause of 'socially and and 10% males above the State average get educationally backwardne.ss...... " thereby holding that married at an age below 17 years in rural areas only criterion which can be devised is the 'economic and at least 10% females and 5% males do so in backwardness' for identifying 'socially and urban areas. educationally backward classes' ignoring the predominance of social backwardness. I am unable to (iv) Castes/Classes where participation of share with this above view. females in work is at least 25% above the State average. How far the Courts would be competent to identify the 'Backward class' is explained by Chinnappa B. Educational Reddy,] in Vasanth Kumar in the following words: (v) Castes/Classes where the number of "We are afraid Courts are not necessarily the children in the age group of 5-15 years who most competent to identify backward classes never attended school is at least 25% above the or to lay down guidelines for their State average. identification except in broad and very general way. We are equipped for; that we have no (vi) Castes/Classes where the rate of student legal barometers to measure social drop-out in the age group of 5-15 years is at backwardness. We are truly removed from the least 25% above the State average. people, particularly those of the backward classes, by layer upon layer of gradation and (vii) Castes/Classes amongst whom the degradation." proportion of matriculates is at least 25% below the State average. Let us have a glance over the Report in identifying the 'backward classes' by testing the same on the C. Economic touchstone of various established criteria. (viii) Castes/Classes where the average value In chapter XI of the Report (Volume I part I) under of family assets is at least 25% below the State caption 'Socio-Educational Field Survey and average. Criteria of Backwardness' it is categorically stated that 60

(ix) Castes/Classes where the number of families living Balaji, Chitralekha and P. Sugar stated, "None of the in Kuccl^a houses is at least 25% above the State above decisions lay down that socially and average. educationally backward class must be exactly similar in all respects to that of &heduled Castes and (x) Castes/Classes where the source of drinking water Scheduled Tribes." is beyou^d half a kilometer for more than 50% of the househol

leads i.e. social, educational and economic lackwardness t>ut giving more importance - rightly too "12.19 Systematic caste-wise enumeration of to the social backwardness as having a direct population was introduced by the Registrar onsquence of caste status. General of India in 1881 and discontinued in 1931. In view of this, figures of caste-wise Adopting tile policy of 'Running with the hare and population beyond 1931 are not available. But lunting with tlie hounds', a conciliatory argum ent was assuming that the inter se rate of growth of dvanced saying that although it is necessary to make population of various castes, communities, and )rovisions for providing equality of opportunity in religious groups over the last half a century i natters of public employment 'in favour of any has remained more or less the same, it is )ackward class' in terms of Article 16 (4), the present possible to work out the percentage that all Report based on 1931 census can never serve a correct these groups constitute of the total population >asis for identifying the 'backward class', that of the country. herefore, a fresh Commission under Article 340 (1) of he Constitution is required to be appointed to make a 12.10 Working on the above basis, the resh wide survey throughout the length and breadth Commission culled out caste/community wise )f the country and submit a new list of OBCs (other population figures from the census records of )ackward classes) on the basis of the present day 1931 and, then grouped them into broad Tensus and that there are million ways of guaranteeing caste-clusters and religious groups. These )rogress of backward classes and ensuring that it collectivities were subsequently aggregated )ercolates down the social scale, but the Mandal under five majdr heads i.e. (i) Scheduled :ommission is the one. Castes and Scheduled Tribes; (ii) N on-H indu communities. Religious Groups, etc.; (iii) Firstly, in my view if the above argum ent is Forward Hindu Castes and Communities; (iv) iccepted it will result in negation of the just claim of Backward Hindu Castes and Communities; he SEBCs to avail the benefit of Articles 16 (4) which is and (v) Backward Non-Hindu I fundamental right. Communities...... "

Secondly, this attack is based on a misconception. A In Balaram, wherein a similar argument was addressed, ?erusal of the Report would indicate that the 1931 this Court after going through the Report of the :ensus docs not have even a remote connection with Backward Classes Commission of the State of Andhra he identification of OBCs. But on the other hand, they Pradesh, felt the difficulty of the non-availability of the ire identified only on the basis of the country-wide caste-wise statistics after 1931 census and pointed out locioeducational field survey and the census report of that in Andhra, the figures of 1921 cunsus were 1961 particularly for the identification of primitive available and in Telangana area, 1931 census of ribes, aborigional tribes, hill tribes, forest tribes and castewise statistics was available. ndigenous tribes and personal knowledge gained hrough extensive touring and receipt of voluminous In the background of the above discussion, the public evidence and lists of OBCs notified by various anti-reservationists cannot have any legitimate jtates. It was only after the identification of OBCs, the grievance and justifiably demand this Court to throw Commission was faced with the task of determining the Report over-board on the mere ground that 1931 heir population percentage and at that stage 1931 census had been taken into consideration by the :ensus became relevant. It is to be further notc!^ after Commission. 1931 census, no c^stdjrwisc statistics had been coUected. As pointed out by this Court in Balaram that no [n fact, the identification of classes by the Commission conclusions can always be scientifically accurate in was based on the realities prevailing in 1980 and not in such matters. If at all the attack perpetrated on the 1931. It is brought to our notice that the same method Report renders any remedy to the anti-reservationists, had already been adopted in Section 5 to the Scheduled it would be only for the purpose of putting the Report Castes and Scheduled Tribes Order (Amendment) Act, 1976. in cold storage as has happened to the Report of the First Backward Classes Commission. Thirdly, the Commission cannot be said to have ignored this factual position and found fault with for Therefore, for the aforementioned reasons, 1 hold relying on 1931 census. In fact, this position is made that the above submission made against the Report dear by the Commission itself in Chapter XII of its with reference to the consideration of Census of 1931 Report, the relevant paragraphs of which read thus: cannot be countenanced. 62

Aft(?r having gone through the Commission's them had been kept at bay on account of various Report 'vory assiduously and punctiliously, I am of the factors, operating against them inclusive of poverty. firm view that the Commission only after deeply They continue to be deprived of enjoyment of equal considering the social, educational and economic opportunity in matters of public employment despite backwardness of various classes of citizens of our there being sufficient statistical evidence in proof of country in the light of the various propositions and manifest imbalance in Government jobs which tests laid down by this Court had submitted its Report evidence is sufficient to supoort an affirmative action enumerating various classes of persons who are to be plan. If candidates belonging to SEBCs (characterised treated as OBCs. The recommendations made in the as mediocre by anti-reservationists), are required to present Report after a long lull since the submission of enter the open field competition, along with the the Report by the First Backward Classes Commission, candidates belonging to advanced communities are supportive of affirmative action programmes without any preferential treatment in public Services in holding the members of the historically disadvantaged their favour and go through a rigid test mechanism groups for centuries to catch up with the standards of being the highly intelligence test and professional competition set up by a well advanced society. ability test as conditions of employment, certainly those conditions would operate as ''built-in As a matter of fact, the Report wanted to reserve headwinds" for SEBCs. It is, therefore, in order to 52% of all the posts in tJje Central Govci-nment for OBCs achieve equality of employment opportunity, clause 4 commensurate with their ratio in the population. of Article 16 empowers the State to provide However, in deference to [egal limitation it has permissible reservation to SEBCs in the matters of recomendcd a reservation of 27% only even though the appointments or posts as a remedy so as to set right population of OBCs is almost twice this figure. the manifest imbalance in the field of public employment. Yet another argument on behalf of the antireservationists was addressed contending that if The argument that the implementation of the the recommendations of the Commission are recommedndations of the Commission would result in implemented, it would result in the sub-standard demoralisation and discontent has no merit because replacing the standard and the reins of power passing conversely can it not be said that the from meritocracy to mediocrity; that the upshot will be non-implementation of the recommendations would in demoralization and discontent and that it would result in demoralisation and discontent among the revitalize caste system, and cleave the nation into two - SEBCs. forward and backward - and open up new vistas for internecine conflict and fissiparous forces, and make Though 'equal protection' clause prohibits the State backwardness a vested interest. from making unreasonable discrimination in providing preferences and facilities for any section of its people, The above tortuous line of reasoning, in my view is nonetheless it requires the State to afford substantially not only illogical, inconceivable, unreasonable and equal opportunities to those, placed unequally. unjustified but also utterly overlooks the stark grim reality of the SEBCs suffering from social stigma and The basic policy of reservation is to off-set ostracism in the present day scenario of hierarchical inequality and remove the manifest imbalance, the caste system. The very object of Article 16 (4) is to victims of which for bygone generations lag far behind ensure equality of opportunity in matters of public and demand equality by special preferences and their employment and give adequate representation to those strategies... Therefore, a comprehensive who have been placed in a very discontent position methodological approach encompassing from time immemorial on account of sociological jurisprudential, compartive, historical and reasons. To put it differently, the purpose of clause (4) anthropological conditions is necessary. Such is to ensure the benefits flowing from the fountain of considerations raise controversial issues transcending this clause on the beneficiaries - namely the Backward the routine legal exercise because certain social groups Classes - who in the opinion of the Constitution who are inherently unequal and who have fallen makers, would have otherwise found it difficult to victims of societal discrimination require enter into public services, competing with advanced compensatory treatment. Needless to emphasise that classes and who could not be kept in limbo until they equality in fact or substantive equality involves the are benefited by the positive action schemes and who necessity of beneficial treatment in order to attain the have suffered and are still suffering from historic result which establishes an equilibrium between two disabilities arising from past discrimination or sections placed unequally. disadvantage or both. However, unfortunately all of 63

It is more appropriate to recall that "There is They would not have any chance if they equality only among equals and to equate unequals is were made to enter the open field of to perpetuate inequality." competition without adventitious aids till such time when they could stand on their Therefore, the submission that the implementation own legs. That is why the makers of the of the recommendations of the Report will curtail Constitution introduced cl. (4) in Article concept of equality as enshrined under Article 14 of the 16." Constitution and destroy the basic structure of the Constitution, cannot be countenanced. It will be befitting, in my opinion, to extract a passage from the book, Bakke, Defunis and Minority One of the arguments criticising the Report is that Admissions (The Quest for Equal Opfx>rtunity) by allan the said Report virtually rewrites the Constitutions and P. Sindler wherein at page 9, the unequal in effect buries 50 fathoms deep the ideal of equality competition is explained by an analogy which is as and that if the recommendations are given effect to and follows; implemented, the efficiency of administration will come to a grinding halt. This submission is tantamount "A good way to appreciate the '"something to saying that the reservation of 27% to SEBCs as per more" quandary is to consider the the impugned OMs is opposed to the concept of metaphor of the shackled runner, an equality. analogy frequently advanced by spokesmen for minorities: There is no question of rewriting the Constitution, because the Commission has acted only under the "Imagine two runners at the starting line, authority of the notification issued by the President. It readying for the 100-yard dash. One has his has after laying down the parameters in the light of the legs shackled, the other not. the gun goes off various pronouncements of this Court has ultimately and the race begins. Not surprisingly, the submitted its Report recommending the reservation in unfettered runner immediately takes the tune with the spirit of Article 16 (4). lead and then rapidly increases the distance between himself and his shackled The question whether the candidates, belonging to competition. Before the finsih line is the SEBCs should be given a preferential treatment in crossed, over the judging official blows his matters of public employment to such time as it is whistle, calls off the contest on the grounds necessary, receives a fitting reply in Devadasan wherein that the unequal conditions between the Subba Rao, J (as the learned Chief Justice then was) has runners made it an unfair competition, and observed, by citing an illustration as to how the orders removal of the shackles." manifest imbalance and inequality will occur otherwise, thus: Surely few would deny that pitting a shacWed runner against an unshackled one "To make my point clear, take the illustration is unequitable and does not provide of a horse race. Two horses are set down to run equality of opportunity. Hence, cancelling a race - one is a first class race horse and the the race and freeing the disadvantaged other an ordinary one. Both are made to run runner of his shackles seem altogether from the same starting point. Though appropriate. Once beyond this point, theoretically they are given equal opportunity however, agreement fades rapidly. The key to run the race, in practice the ordinary horse question becomes: what should be done so is not given an equal opportunity to compete that the two runners can resume the contest with the race horse. Indeed that is denied to it. on a basis of fair competition? Is it enough So a handicap may be given either in the after removing the shackles, to place both nature of extra weight or a start from a longer runners back at the starting point? Or is distance. By doing so, what would otherwise "something more" needed, and if so, what? have been a farce of a competition would be Should the rules of the running be altered, made a real one. The same difficulty had and if so, how? Should the previously confronted the makers of the Constitution at shackled runner be given a compensatory the time it was made. Centuries of calculated edge, or should the other runner be oppression and habitual submission reduced a handicapped in some way? How much edge considerable section of our community to a life or handicap?" of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal To one of the queries poses by the author of the opportunity was strictly enforced in their case. above analogy, the proper reply would be that even 64 if the shackles whether of iron chains or silken cord, are obvious to be stated. And, what is merit? Tliere removed and the shackled person has become unfet­ is no merit in a system which brings about such tered, he must be given a compensatory edge until he consequences." realises tJiat there is no more shackle on his legs because even after the removal of shackles he does not have Be that as it may, tlie intelligence, merit, ability, sufficient courage to compete witli tlie runiier who has competence, meritocracy, administrative efficiency and been all along unfettered. achievement cannot be measured by skin-pigmentation or by the surname of an individual indicating his caste. Mr. Bam Awadesh Singh, an intervener demonstra­ bly explained that as unwatered seeds do not germinate, In this regard, the observation of Subba Rao, J in unprotected backward class citizens will wither away. Devadasan at page 706 may be recapitulated, which to some extent answers the doubt raised by a section of anti- The above illustration and analogies would lead to reservationists that reservation will result in deteriora­ a conclusion tliat there is an ocean of difference between tion in the standard of service. The said observation a well advanced class and a backward class in a race of reads as follows : open conapetition in the matters of public employment and they, having been placed unequally, cannot be "If the provision deals with reservation - which measured by the same yardstick. As repeatedly pointed 1 hold it does - 1 do not see how it will be bad out, it is only in order to make the unequals equals, this because there will be some deterioration in the constitutional provision, namely/clause (4) of Article 16 standard of service. It is inevitable in the nature has been designed and purposely introduced providing of reservation that there will be lowering of some preferential treatment to the backward class. It is standards to someextent; buton that account the only in case of denial of such preferential treatment, the provision cannot be said to be bad. Indeed, the very concept of equality as enshrined in the Constitution, State laid down the minimum qualifications and will get buried 50 fathoms deep* all the appointments were made from those who had the said qualifications. How far the effi­ A programme of reservation may sacrifice merit but ciency of the administrations suffers by this does not in any way sacrifice competence because the provision is not for me to say, but it is for the beneficiaries under Article 16(4) have to possess the State, which is certainly interested in the main­ requisite basic qualifications and eligibility and have to tenance of standards of its administration." compete among themselves though not witli mainstream candidates. Submission on the theory of past discrimination based on the decisions of the Supreme Court of United States As Chinnappa Reddy, J in Vasanth Kumar has rightly observed, ''Always one hears the word 'efficiency' as if Based on certain American decisions, it has been it is sacrosanct and the sanctorum has to be fiercely urged that only that group or section of people suffering guarded. 'Efficiency' is not a m antra which is whispered from the lingering effects of past discrimination can be by tlie Guru in tlie Sishya's ear." classified as 'backward classes' and not others. This submission has to be mentioned for being simply re­ In yet another context, in the same decision, the jected for more tlian one reason. Even today, the caste learned Judge at page 394 has firmly and irrefutably put discrimination is very much prevalent in India particu­ the merit argument at rest stating thus : larly in the rural areas. Secondly, even among the Judges of the Supreme Court of United States, there is a division "The real conflict is between the class of people, of opinion on the theory of lingering effects of past who have never been in or who have already discrimination. Thirdly, this theory cannot be imported moved out of tlie desert of poverty, illiteracy and to the Indian conditions where the Hindu society even backwardness and are entrenched in the oasis of today is suffering from the firm grip of discrimination convenient living and those who are still in the based on caste system. The vastness and richness of the desert and want to reach the oasis. There is no materials unearthed by the various Commissions inclu­ enough fruit in the garden and so those who are sive of States' Commissions unambiguously and pellu- in, want to keep out those who are out. The cidly reveal tliat in our country, representation of the disastrous consequences of the so-called SEBCs in the services under the State is grossly inad­ meritarian principle to the vast majority of the equate when compared to the representation of the under-nourished, poverty-stricken, barely liter­ advanced class of citizens leave the complete absence of ate and vulnerable people of our country are too reservation for SEBCs in the Central Services. This inad­ 65

equate representation is not confined to any specific latitude to the State in the matter of reservation and that section of the people, but all those who fall under the Article 16(4) having non-obstante clause reading "Noth­ group of social backwardness whether tliey are Shudras ing in tliis Article shall prevent theState fro m making any of Hindu community or similarly situated other back­ provision...... " has an over-riding effect on Article 16(2). ward classes of people in other communities, namely, Muslims, Siklis, Christians etc. In support of the above argument based on the non- obstante clause, much reliance was placed on various Drawing strength on tlie opinion of Powell, J in decisions, namely, (1) Punjab Province v. Daulat Singh & Regents of the Umversity of California v. Allan Bakke 57 L Ed Others 1942 F.C.R. 67 at 87 and 88; (2) Orient Paper and 2d 750, an argument has been advanced that Article 16 (1) Industries Ltd. v. State of Orissa AIR 1991 S C 672 at 677 and permits only preferences but not reservations. In the 678; (3) In re. Hatschek's Patents 1909 Chancery Division above Bakke's case, a white male who had been denied Vol. I I 68 at 82 and 85; and (4) Hari Vishnu Kamath v. Syed admission to the medical school at the University of Ahnied Ishaqueand others 1955(1) SCR 1104 at 1121. California at Davis for two consecutive years, instituted an action for declaratory and injunctive relief against the Yet another argument placing reliance on Regents of the University in the Superior Court of Yolo TrilokiNath's case (I) (supra) was advanced contending County, California alleging the invalidity under the that Article 16(4) is an enabling provision conferring a equal protection clause of the Fourteenth Amendment, a discretionary power on the Sta te to make a reservation of provision of the California Constitution, and tlie pro­ appointments in favour of backward class of citizens. scription in racial discrimination in any programme Placing reliance on the view expressed by Wanchoo, J (as receiving federal financial assistance of the medical the learned Chief Justice then was) in General Manager, school's special admissions programme. The Supreme Southern Railzvays v. Rangachari 1962 (2) SCR 586 it was Court announced its decision amid confusion and con­ further urged that Article 16(4) which is in the nature of troversy. There was no clear majority, but a three-way an exception or proviso to Article 16(1) cannot nullify split namely four Judges took one view and four otlier equality of opportunity guaranteed to all citizens by that Judges took a different view, leaving Justice Powell arjjcle. straddling the middle. In their joint opinion partially concurring and partially dissenting, Justice Brennan, In my view, that clause (4) of Article 16 is not an White, Marshal and Blackmun took issue with Powell's exception to Article 16 (1) and (2) but it is an enabling conclusion that the Davis programme was unconstitu­ provision and permissive in character overriding Article tional and said, "W e cannot... let color blindness become 16(1) and (2); that it is a source of reservation for appoint­ myopia which masks the reality that many 'created ments or posts in the Services so far as the backw ard class equal' have been treated within our lifetimes as inferior of citizens is concerned and that under clause (1) of both by the law and by their fellow citizens." Article 16 reservation for appointments or posts can be made to other sections of the society such as physically Attention was also drawn to Defunis Vs. Charles handicapped etc. Odegaurd 1974 (40) LEd. 2nd 164. There is complete unanimity of judicial opinion of The analytical study of American cases shows that this Court that under Article 16(4) the State can make the American-style justification of positive discrimina­ adequate provisions for reservations of appointments or tion is on the ground of utility whereas the Indian-style posts in favour of any backward class of citizens, if in the justification is on the ground of constitutional rights. opinion of the State such 'backward class' is not ad- Therefore, tlie decision in relation to a racial discrimina­ equatel^^l^^esentedthe State. In fact in B. tion relating to an admission to the medical school canjiot Venkatard^^M v. Stateof Madras AIR 1951 SC 225 a seven be of much assistance in tlie matter of identification of Judges of this C©iart held that "reservation of 'backward classes' falling under Article 16 (4). The dicta posts in favour of any backward class of citizens cannot, in Bakke and Defunis is one akin to the principle covered therefore, be regarded as unconstitutional". Not a single under Article 15 (4) and not under Article 16 (1) or 16 (4). decision of this Court has cast slightest shadow of doubt on the constitutional validity of reservation. Therefore, Whether Article 16 (4) is an exception to Articles 16 (1) in view of the above position of law, I am not inclined to and (2)? embark upon an elaborate discussion on this question any further. Mr. Parasaran, the learned senior counsel, appear­ ing on behalf of the Union of India articulated that Whether Reservation under Article 16 (4) can be made by Articles 16(4) and 335 are so worded as to give a wide Executive Order? 66

Tlie r>ext submission that tlie provision for reserva­ formed on the subjective satisfaction of the Government tion of appointments or posts under Article 16(4) can be whether the identified 'backward class of citizens' are made on ly by a legislation and not by an executive order adequately represented or not in tlie Services under the is unsustainable. This contention as a matter of fact has State. Eut for drawing such requisite satisfaction, the already been answered in (l)Balaji (supra) and (2), Comp­ existence of circumstances relevant to tlie formation of troller & Auditor General v. Mohan Lai Mehrotra 1992 (1) opinion is a sine quo non. If the opinion suffers from the s e e 20. vice of non-application of mind or formulation of collat­ eral grounds the scope of Statute, or irrelevant and In passing, it may be stated that this Court while extraneous material then that opinion is challengeable.. reversing the judgement of the Punjab and Haryana See (1) Dr. N.B. Khare V. The State of Delhi 1950 SCR 519; High C ourt in favour of the appellant (State) in State of (2) Govindji V. Municipal Corporation, Ahmedabad 1957 Punjab V. Hirala Lai and Ors. 1971 (3) SCR 267 upheld the Bom. 147; (3) Viretidra V. The State of Punjab and Another reservation which was made not by a legislation but by 1958 SCR 308; (4) The Barium Chemicals Ltd. and Am. V. an executive order. See also Mangal Singh v. Punjab State The Company Law Board and Others 1966 Suppl. SCR 311 Police AIR 1968 Punjab 306. and (5) Rohtas Industries V. S.D. Agarwal and Others 1969 (l)SCC 325. Agreeing with the reasonings of Balaji. I hold that the provision for reservation in the "Services under the In tlie present case, nothing is shown that the opinion State" under Article 16(4) can be made by an executive of the Government as regards tlie inadequacy of repre­ order. sentation in the Services is vitiated on any of the grounds mentioned above. Whether the power conferred under Art. 16(4) is coupled with duty? Whether the policy of the Government can be subjected to judicial review? Mr. K. Parasaran put forth an argument that the enabling power conferred under Arti^cle 16 (4) is in­ The action of the Government in making provision tended for the benefit of the 'backward classes of citi­ for the reservation of appointments or posts in favour of zens' w ho in the opinion of the Stal/e are not adequately any 'backward class of citizens' is a matter of policy of the represented in the Services under dhe State and tliat the Government. W hat is best for tlie 'backw ard class' and in power is one coupled with a dujy and, therefore, has to what manner the policy should be formulated and imple­ be exercised by the Stn te for the benefit of those for whom mented bearing in mind tlie object to be achieved by such it is intended. Reference was made to H.W.R. Wade reservation is a matter for decision exclusively witliin the Administrative Law V Edn. Pages 228 and 229, Halsbury's province of the Government and such matters do not LawsofEnglandIVEdn. Vol.lparaspage34para27andpage ordinarily attract the power of judicial review or judicial 35 para 29j. He adds that tlie duty caused on tlie State is interference except on the grounds which are well settled to be exercised in keeping witli the directive principles by a catena of decisions of tliis Court. Reference may be laid down under Article 46 to promote with special care m ade to (1) Hindustan Zinc V. A.P. State Electricity Board the educational and economic interests of the weaker 1991 (3) s e e 299; (2) Sitaram Sugars V. Union of India and sections of the people and, in par ticular, of the Scheduled Others 1990 (3) SCC 223; (3) D.C.M. V. S. Paramjit Singh Castes and the Scheduled Tribes and to protect tliem 1990 (4) SCC 723; (4) Minerva Talkies V. State of Karnataka from social injustice and all other forms of exploitation. and Others 1988 Suppl SCC 176; (5) State of Karnataka V. In this connection, attention was drawn to a few deci­ Ranganath Reddy 1978(1) ^CR 641;(6) Kerala State Electric­ sions of this Court, namely, (1) Chief Controlling Revenue ity Board V. S.N. Govind Prabhu 1986 (4) SCC; (7) Prag Ice Authority V. Maharashtra Sugar Mills Ltd. 1950 SCR 536; Company V. Union of India andO thersl978 (2) SCC 459; (8) (2) Official Liquidator V. Dharti Dhan 964; (3) Delhi Admin­ Saraswati Industries Syndicate Ltd. Union of India 1975 (1) istration V. IK . Nangia 1980(1) SCR 1016; and (4) Jaganatlmn SCR 956; (9) M urti Match Works V. Assistant Collector, (supra). Central Excise and Others 1974 (3)SC R 121;(10) T. Govindraja Mudaliar V. State of Tamil Nadu and Others 1973 (3) SCR Whether formation of opinion by State is subjective? 222; and (11) Narender Kumar V. Union of India and Others 1969 (2) SCR 375. The expression "in the opinion of the State” would mean the formation of opinion by the State which is To what extent can the reservation be made? purely a subjective process. It cannot be challenged in a Court on the ground of propriety, reasonableness and The next baffling question relates to the permissible sufficiency though such an opinion is required to be extent of reservation in appointments. 67

It was for the first time that this Court in Balaji has said annexure that the Chief Minister has categorically indicated broadly that the reservation should be less emphasised the stand of the Government of Tamil Nadu than 50% and the question how much less than 50% stating that the total reservation for backward classes, would depend on the relevant prevailing circumstances scheduled castes and scheduled tribes is 69%; that it is in each case. Though in Balaji, the issue in dispute related but fair and proper that socially and educationally back­ on'ly to-the reservation prescribed for admissions in the ward classes (alone) as a whole should be given at least medical college from the educationally and socially 50% reservation for employment opportunities in Cen­ backward classes, scheduled castes and scheduled tribes tral Government services and its undertakings as well as as being violative of Article 15 (4), this Court after for admission in educational institutions run by the expressing its view that it should be less than 50 % Central Government. It has also been pointed out that in observed further that “ the provisions of Article 15 (4) are consonance with this avowed policy, the Tamil Nadu similar to those of Article 16(4)...... Therefore, what Legislative Assembly passed unanimously a resolution is true in regard to Article 15 (4) is equally true in regard on 30.9.1991 urging the Government of India to adopt a to Article 16 (4) ...... reservation made under policy of 50% reservation for the Backward Classes Article 16 (4) beyond the permissible and legitimate instead of 27% and to apply this reservation not only for limits would be liable to be challenged as a fraud on the employment opportunities in all Central Government Constitution." This decision has gone further holding departments and Public Sector Undertakings, but also that the reservation of 68% seats made 11111131*0356 was for admission in all Educational Institutions run by the offending Article 15 (4) of the Constitution. To say in Central Government. other words, Balaji has fixed that the maximum limit of reservation all put together should not exceed 50% and Mr. Rajiv Dhawan appearing in W.P. No. 1094/91 if it exceeds, it is nothing but a fraud on the Constitution. submits that the limits to the reservation in Article 16 (4) Even at the threshold, 1 may emphatically state that 1 am caimot be fixed on percentage but it must be with the unable to agree with the proposition fixing the ulterior objective of achieving adequate representation reservation for SEBCs at 50% as the maximum limit. for 'backward classes'.

Mr. Jethmalani stronglyarticulated that the observa­ I see much force in the above submissions and hold tion in Balaji that reservation under Article 16 (4) should that any reservation in excess of 50% for 'backward not be beyond 50% is only an obiter dicta since that classes' will not be violative of Article 14 and /o r 16 of the question did not at all arise for consideration in that case. Constitution. But at the same time, 1 am of the view that Therefore, accord ing to him, this observation is not a law such reservations made either under Article 16 (4) or declared by the Supreme Court within the meaning of under Article 16 (1) and (4) cannot be extended to Article 141 of theConstitution. Hecontinued tostate that the totality of 100%. In fact, my learned brother, P.B. unfortunately some of the subsequent decisions have Sawant j in his separate judgement has also expressed a mistakenly held as if the question of permissible limit has similar view that "there is no legal infirmity in keeping been settled in Balaji while, in fact, the view expressed in the reservations under clause (4) alone or under clause it was an obiter dicta. According to him, the policy of (4) and clause (1) of Article 16 together exceeding 50 reservation is in the natureof affirmative action, firstly to percent" though for other reasons the learned Judge has eliminate the past inhuman discrimination and secondly concluded that ordinarily the reservations kept under to ameliorate the sufferings and reverse the genetic Article 16 (1) and 16 (4) together should not exceed 50% damage so that the people belonging to 'backward class' of the appointments in a cadre or service in any particu­ can be uplifted. When it is the main objective of clause (4) lar year, but for extraordinary reasons this percentage of Article 16 any limitation on reservation would defeat may be exceeded. My learned brother, B.P. Jeevan Reddy, the very purpose of this Article falling under Fundamen­ J in his separate judgement has expressed his view that tal Rights and, therefore, reservation if the circumstances in given circumstances, some relaxation in the strict rule so warrant can go even upto 100%. of reservation may become imperative and added that in doing so extreme caution is to be exercised and a special This view of Mr. Jethmalani has been fully supported case made out. by Mr. Siva Subramaniam appearing on behalf of the State of Tamil Nadu who pointedly referred to the As to what extent the proportion of reservation will speech of the Chief Minister of Tamil Nadu made in the be so excessive as to render it bad must depend upon Chief Ministers'Conference held on 10th April 1992 and adequacy of representation in a given case. Therefore, produced a copy of the printed speech of the Chief the decisions fixing the percentage of reservation only Minister, issued by the Government of Tamil Nadu as an upto the maximum of 50% are unsustainable. The per­ annexure to the written submissions. It is seen from the centage of reservation at the maximum of 50% is neither 68

based on scientific data nor on any establisiied and " ...... There is no fixed ceiling to reserva­ agreed formula. In fact. Article 16 (4) itself does not limit tion or preferential treatment in favour of the the power of the Government in making the reservation Scheduled Castes and Scheduled Tribes though to any maximum percentage; but it depends upon the generally reservation may not be far in excess of quantum of adequate representation required in the fifty percent. There is no rigidity about the fifty Services. In this context, it would be appropriate to recall percent rule which is only a convenient guide­ some of th»e decisions of this Court, not agreeing with line laid down by Judges. Every case must be Balaji as regards the fixation of percentage of reservation. decided with reference to the present practical results yielded by tlie application of the particu­ The question of percentage of reservation was exam­ lar rule of preferential treatment and not with ined in Thomas wherein Fazal Ali, J not agreeing with reference to hypothetical results which the ap­ Balaji has observed thus : plication of the rule may yield in the future. Judged in the light of this discussion I am unable " ...... clause (4) of Art. 16 does not fix to find anything illegal or unconstitutiorial in any limit on the power of the Government to any one of the impugned orders and make reservation. Since clause (4) is a part of Art. circulars...... " 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reser­ Again in Vasanth Kumar, Chinnappa Reddy, J vation so as to defeat the policy contained in reiterates his view taken in Karamchari in the following Article 16 (1). As to what would be a suitable w ords : reservation within permissible limits will depend upon the facts and circumstances of "We must repeat here, what we have said each case and no hard and fast rule can be laid earlier, that there is no scientific statistical data down, nor can this matter be reduced to a or evidence of expert administrators who have mathematical formula so as to be adhered to in made any study of the problem to support the all cases. Decided cases of tliis Court have no opinion that reservation in excess of 50 percent doubt laid that the percentage of reservation may impair efficiency." should not exceed 50 %. As I read the authori­ ties, this is, however, a rule of caution and does I fully share tlie above views of Fazal Ali, Krishna not exhaust all categories. Suppose for instance Iyer, Chinnappa Reddy, JJ holding that no maximum a State has a large number of backward classes percentage of reservation can be justifiably fixed under of citizens which constitute 80% of the popula­ Articles 15 (4) and/or 16 (4) of tlie Constitution. tion and the Government, in order to give them proper representation, reserves 80% of the jobs It should not be out of place to recall the observation for them, can it be said that the percentage of of H egde, J in Hira Lai observing, " The extent of reser­ reservation is bad and violates the permissible vation to be made is primarily a matter for the State to limits of clause (4) of Article 16? The answer decide. By this we do not mean to say that the decision must necessarily be in the negative. The domi­ of the State is not open to judicial re v ie w ...... nant object of thus provision is to take steps to The length of the leap to be provided depmds upon the gap to make inadequate representation adequate." be covered/' (emphasis supplied)

Desai, J in Vasanth Kumar expressed his view that in Krishna Iyer, J in the same decision has agreed with dealing with the question of reservation in favour of the above view of Fazal Ali, J stating that ... the Scheduled Castes, Scheduled Tribes as well as other arithmetical limit of 50% in any one year by some earlier SEBCs 'Judiciary retained its traditional blindfold on its rulings cannot perhaps be pressed too far." eyes and thereby ignored perceived realities."

Though Mathew, J did not specifically deal with this Whether thefurther arbitrary classification as 'poorer sections' maximum limit of reservation, nevertheless the tenor of from and out of the identified SEBCs is permissible under his judgement indicates that he did not favour 50% rule. Article 16 (4) after acceptance and approval of the list xvithout reservation and whether such classification suffers from non­ Chinnappa Reddy, J in Karamchari case 1981 (2) SCR application of mind? 185 (supra) has expressed his view on the ceiling of reservation as follows : Tlie most important and crucial issue that I would now like to ponder relates to the intent of para 2 (i) of the 69

OM dated 25tli September 1991 where under it is only in case there are unfilled vacancies, those vacancies declared that “Within the 27%of the vacancies in civil will be filled by tlie left out SEBCs, namely, those oUier posts and services under the Government of India than poorer sections. In other words, it m eans that all tlie reserved for SEBCs, preference will be given to the candi­ identified SEBCs do not belong to affluent sections but to dates belonging to the poorer sections of the SEBCs. In case poor and poorer sections, that tlie expression 'poorer sufficient number of such candidates are not available, sections' denotes only the economically weaker sections unfilled vacancies shall be filled by the other SEBC of SEBCs compared with the remaining sam e category of candidates", (emphasis supplied) SEBCs and tliat those, other than the 'poorer sections' although socially and educationally backward are eco­ To say in other words, the Government intends to nomically better off compared with the 'poorer sections'. prescribe an income ceiling for determination of 'poorer The view that all the identified SEBCs are considered as sections' of the SEBCs who will be eligible to avail of the 'poor' or 'poorer' is fortified by the fact that there is an preferenceof reservation of appointments or posts in tlie inbuilt explanation in the amended OM itself to the effect Services under the State. It is an admitted fact that the that those w ho do not fall within the categ o ry of 'poorer Government so far has not laid down any guideline or sections' also will be entitled for the benefit of reserva­ test for identifying and ascertaining the 'poorer sections' tion but of course subject to the availability of unfilled among tine identified SEBCs. vacancies.

The OM has specifically used the expression, An argument was advanced that for identifying 'poorer sections' but not 'weaker sections' as contem­ 'poorer sections', the 'means test' signifying an imposi­ plated under Article 46 of the Constitution. Though the tion of outer income limit should be applied and those expressions 'poorer sections' and 'weaker sections' may who are above the cut off income limit should be connote in general 'the disadvantaged position of a excluded so that the better off sections of the SEBCs may section of the people' they do not convey one and the be prevented from taking tlie benefit earmarked for the same meaning and tliey are not synonymous. When the less fortunate brethren, and Uie only genuine and truly OM deliberately uses the expression 'poorer sections', it members of 'poorer sections' of SEBCs may avail the has become incumbent to examine what tliat expression benefit of reservation. In support of this argument, an means and whether there can be any sub-classification as attempt has been made to draw strength on two deci­ 'poorer' and 'non-poorer' among'the same category of sions of this Court rendered in Jayashree and Vasanth potential backward class of citizens on the anvil of Kumar. economic criterion. Chief Justice Ray in Jayashree seems to have been The word 'poor' lexically means "having little or no inclined to take the view that reservation of seats in money, goods or otlier means of support" (Webster's educational institutions should not be allowed to be Encyclopedic Unabridged Dictionary) or "lacking enjoyed by the rich people suffering from tlie same ■financial or other means of subsistence" (Collins communal disabilities. English Dictionary). Chinnappa Reddy, J in Vasanth Kumar recognises The OM uses the expression 'poorer' in its com para­ this 'means test' saying tliat "an upper income ceiling tive term for the word 'poor'. It is common knowledge would secure the benefit of reservation to such of those that the superlative term for the word 'poor' is 'poorest'. members of the class who really deserved it", witli The very usage of the word 'poorer' is in comparison which view Venkataramiah, J (as the learned Chief with the positive word 'poor'. Therefore, it necessarily Justice then was) has agreed. follows that the OM firstly considers all the identified SEBCs in general as belonging to 'poor sections' from Thus the above argument based on 'means test' and out of which the 'poorer sections' are to be culled out though seems to be plausible at the first sight is, in my by applying a test to be yet formulated by the Govern­ opinion, not well founded and must be rejected on the ment evidently on economic criterion or by application ground that tlie identified category of SEBCs, having of poverty test based on the ceiling of income. After the common characteristics or attributes - namely the poten­ segregation of 'poorer sections' of the SEBCs, the left out tial social backwardness cannot be bisected or farther would be the 'poor sections'. By the use of the word classified by applying the economic or poverty test. 'poorer', the Government is super-imposing a relative poverty test for identifying and determining a preferen­ A doubt has been created as to whether the word tial class among the identified SEBCs. It is stated that the 'poorer' connotes economic status or social status or is preference will be given first to the 'poorer sections' and to be understood in any other way. 70

The w ord poorer' when examined in the context in When tlie 'means test' is analysed in deptli so as to which it is deployed both syntactically and etymologi- explore its merits and demerits, one would come to an cally, in my view, may not convey any other meaning inevitable conclusion tliat it is not a decisive test but on except relative poverty or comparative economic status. the other hand it will serve as a protective umbrella for If any other nrieaning is imported which the Government many to get into this segregated section by adopting all evidently appears to have not contemplated, virtually kinds of illegal and unetliical methods. Further, tliis test one will be rewriting the second OM. will be totally unworkable and impracticable in the determinationof"gettingsomebodyinand getting some­ An order of a Constitution Bench dated 1st October body out" from among the same identified SEBCs. If this 1991 clearly spells out that Bench was of the view that 'means test' argument is accepted and put into action by 'poorer sections' are to be identified by the economic scanning the identified SEBCs by applying a super­ criterion. The relevant portion of the above Order reads imposition test, the very object and purpose of reserva­ as follows : tion, intended for the socially backward class would reach only a culde sac and the identified SEBCs would be "The matters are adjourned to 31st October 1991 left in a maze. In my considered opinion, it will be a futile when learned Additional Solicitor General will exercise for the courts to find out the reasons in support tell us how and when Government would be of the division between and among the group of SEBCs able to give the list of the economic criteria referred and make rule therefor, for multiple reasons, a few of to in the notification of 25th September 1991." which I am enumerating hereunder. (emphasissupplied) (1) The division among the identified and ascer­ The same view is reflected in a subsequent Order tained SEBCs having common characteristics and dated 4th December 1991 made by this nine-judges attributes - the primary of which being the potential Bench, the relevant part of which reads thus : socialbackwardness, as'poorer sections'and 'non-poorer sections' on the anvil of economic criterion or by appli­ "Learned Additional Solicitor General states cation of a super-imposition test of relative poverty is that the Government definitely expects to be impermissible as being opposed to the scope and intent able to fix the economic criteria by January 28, of Article 16 (4). 1992...... As far as tlie question of stay granted by us earlier is concerned, w e see (2) If this apex Court puts its seal of approval to no reason to pass any order at this stage as tlie para 2 (i) of the second OM whereunder a section of the petitions are posted for hearing on January 28, people under the label of 'poorer sections' is carved out 1992 and in view of the economic criterion not from among the SEBCs, it becomes a law declared by this being yet determined and other relevant circum­ Court for the entire nation under Article 141 of tlie stances, no question of immediate implementa­ Constitution and is binding on all the Courts within the tion of the notification arises." territory of India and tliat the decision of tliis Court on a (emphasis supplied) constitutional question cannot be over-ridden except by the constitutionally recognised norms. When such is tlie The above Orders of this Court support my view legal position, tlie law so declared should be capable of that the Government has to identify the 'poorer sections' being effectively implemented in its full measure, in tlie only by the economic criteria or by the application of generality of cases and not confined in its applicability to poverty test otherwise called 'means test'. It appears that some rare or freakish cases. Tlie law should not be this Court has all along been given to understand that susceptible of being abused or misused and leave scope 'poorer sections' will be tested by the Government on for manipulation which can remain undetected. If the economic criterion. law so declared by this Court is indecisive and leaves perceivable loop-holes, by the aid of which one can The above view is furtlier fortified by the very fact defeat or circumvent or nullify tliat law by adopting an that the second OM providing 10% of the reservation insidious, tricky, fraudulent and strategic device to suit 'for economically backward sections of the people not one's purpose then that law will become otiose and covered by pny other scheme of the reservation' indi­ remain as dead letter. cates that tlie Government has taken only tlie economic criteria in making the classification of the various sec­ I would like to indicate the various reasons in sup­ tions of the people (emphasis supplied). Tlierefore, I port of my opinion that this process of elimination or proceed on the basis that the second OM identifies the exclusion of a section of people from and out of the same 'poorer sections' only on the basis of economic status. category of SEBCs cannot be sustained leave apart the 71 authority of tJhe Government to take any decision and purview by any intervening fortuitous circum ­ formulate its policy in its discretion or opinion provided stances such as getting a marital alliance in a rich that the ipoWcy is not violative of any constitutional or family or by obtaining any wind-fall wealtli. legal provisions or that discretion or opinion is not vitiated by nan-application of mind, arbitrariness, for­ g) If poverty test is made applicable for identi­ mulation of collateral grounds or consideration of irrel­ fying the 'poorer sections' then in a given case evant and extraneous material etc. wherein a person is socially oppressed and educationally backward but economically a) If the 8u\nual gross income of a government slightly advanced in a particular year, he will be servant derived from all his sources during a deprived of getting the preferential treatment. financial year is taken as a test for identifying the "poorer sections', that test could be defeated by The above are only by way of illustrations, though reducing the income below the ceiling limit by a this type can be multiplied, for the purpose of showing Government servant voluntarily going on leave that a person can voluntarily reduce his income and on loss of pay for few months during that finan­ thereby circumvent the declared law of this Court. In all cial year so that he could bring his annual income the above illustrations, enumerated as (a) to (g), the within the ceiling limit and claim the benefit of chance of "getting into or getting out of" the definition reservation meant for 'poorer sections'. Simi­ of 'poorer sections' will be like a see-sflw depending upon larly, a person owning extensivejand also may the fluctuating fortunes of misfortunes. lay a portion of his fallow in any particular year or dispose of a portion of his land so as to bring (2) The income test for ascertaining poverty may his agricultural income below the ceiling limit so severely suffer from the vice of corruption and also that he may fall within the category of 'poorer encourage patronage and nepotism. sections'. (3) When the Government has accepted and ap­ b) The fluctuating fortunes or misfortimes also proved tlie lists of SEBCs, identified by the test of social will play an important role in determining backwardness, educational backwardness and economic whether one gets within the area of 'poorer backwardness which lists are annexed to the Report, sections' or gets out of it, there is no justification by dividing the SEBCs into two groups, thereby allowing one section to fully enjoy the c) Take a case wherein there are two brothers benefits and anotlier on a condition only if there are belonging to the same family of 'backward class' unfilled vacancies. of whom one is employed in Government serv­ ice and another is privately employed or has (4) The elimination of a section of SEBCs by putting chosen some other profession. The annual in­ an arbitrary and unnecessary barrier on the basis of come of the Government employee if slightly economic criterion is absolutely unjustified. This process exceeds the ceiling limit, his children will not fall of elimination or exclusion of a section of SEBCs will be within the category of 'poorer sections' whereas tantamount to pushing those persons into the arena of the otlier brother can deceitfully show his in­ open competition along with the forward class if tliere come within the ceiling limit so that his children are no unfilled vacancies out of the total 27% meant for can enjoy that benefit. SEBCs. This will cause an irretrievable injustice to all the non-poorer sections tliough tiiey are also theoretically d) Among the pensioners also, the above ano­ declared as SEBCs. maly will prevail as pointed out in Janaki Prasad. (5) The second OM providing a scanning test is neitlier feasible nor practicable. It will be perceptible and e) Any m ember of SEBCs w ho is in Government effectual only if the entire identified backward class job and is on the verge of his superannuation and enjoys tlie benefit of reservation. whose income exceeds the ceiling limit, will go out of the purview of 'poorer section' but in the (6) The proposed 'means test' is highly impression­ next financial year, he may get into tlie 'poorer istic test, tlie result of which is likely to be influenced by sections' if his total pensionary benefits fall many uncertain and imponderable facts. within the ceiling limit. (7) It may theoretically sound well but in practice 0:) A person who is within the definition of may be made in a underhanded way to get round the poorer sections' may suddenly go out of its problem. 72

What I have indicated above is only the tip of tlie It may not be out of place to mention here that in iceberg and niore of it is likely to surface at the time when Tamil Nadu, based on one of the recommendations of tlie any scannir^g process and super-imposition test are put First Backward Classes Commission constituted in 1969 into practice- - known as 'Sattanatham Commission; - the Government issued orders in GO Ms No. 1156, Social Welfare Depart­ In tliis Connection, 1 would like to mention the ment, dated 2nd July 1979, superimposing the income views of the Tamil Nadu Government as expressed by ceiling of Rs. 9,000/- per annum as additional criterion the Chief Minister of Tamil Nadu in the Chief Ministers' for the backward classes to be eligible for reservation for Conference held in New Delhi (already referred to) admission in educational institutions and recruitment^o stating that the application of income limit on reserva­ public services. This order was challenged before the tion will exclude those people whose income is above the High Court but the High Court by 2:1 upheld the G.O. 'cut-off limit and literally, it means that they will come However, the order provoked a considerable volume of under the open competition quota and if caste is not the public criticism. After an All-party meet, the Govern­ sole criterion, income limit cannot also be the decisive ment in GO Ms No. 72, Social Welfare Department dated and determining factor for social backwardness and that 1st February 1980 revoked their orders and tlie position the exclusion cf certain people from the benefits of as it stood prior to 2nd July 1979 was restored. Simulta­ reservation by the application of economic criterion will neously, by another GO Ms No. 73, Social Welfare not bring the desired effect for the . Is2 advancement and Department dated 1st February 1980, the Government improvement of the backward classes who have suffered raised the percentage of reservation for backward classes deprivations from tlie time immemorial. from 31 percent to 50 percent commensurate witli the population of the backward classes in the State. Both the Reference also be made to Balaji wherein it has been GOs i.e., GO Ms No. 72 and 73 dated 1st February 1980 ruled that backward classes cannot be further classified were challenged in the Supreme Court in Writ Petition into backward and more backward and that such a sub­ Nos. 4995-4997 of 1980 along with W.P. No. 402 of 1981. classification "does not appear to be justified under Article 15 (4)". This view, in my opinion, can be equally The Constitution Bench of this Court by its order applied even for sub-classification under Article 16 (4). dated 14th October 1980 directed the State Government to appoint another Commission to review the then exist­ Arguing with the above view of 1 hold that the ing enumeration and classification of backward classes further sub-classification as 'poorer sections' out of the and to take necessary steps for identifying the backward ascertained SEBCs after accepting the group in which the classes in the light of the report of the said Commission common thread of social backwardness runs tlirough as and that both the GOs "shall lapse after January 1,1985". an identifiable unit within the meaning of the expression However, by order dated 5.5.1981, the above writ peti­ 'backward class', is violative of Article 16 (4). tions were directed to be listed alongwith W.P. Nos. 1297-98/79 and 1497/79 {Vasanth Kumar). Thereafter, a Of course, in Vasanth Kumar, Chinnappa Reddy, J in number of CMPs in the writ petitions for extension of his separate judgement has taken a slightly contrary time for implementation of this Court's directions were view, holding tliat there can be classification for provid­ filled. This Court periodically extended tlie time upto ing some reservation to the more backward classes July 1985. A CMP for further extension of time was compared to little more advanced backward classes. dismissed on 23.7.1985 by a three-judges Bench of this This view is expressed only by the learned judge Court since the judgement in Vasanth Kumar involving (Chinnappa Reddy, J) on which view otlier Judges of that the same question was delivered on 8.5.1985. Vide (1) Bench have not expressed any opinion. However, it Orders of Supreme Court in W.P. Nos. 4995-97/1980 and appears that the learned ]udge has not said that the entire W.P. No. 402/1981, (2) Orders of High Court of Madras reservation should go only to the more backward classes in W.P. Nos. 3069,3292 and 3436/79 dated 20th August but only some percentage of reservation should be pro­ 1979 and (3) Paragraph 1.01 of Chapter I of the Report of vided and earmarked exclusively for the more backward the Tamil Nadu Second Backward Classes Commission classes. (popularly known as Ambasankar Commission)

In tlie present case, tlie entire reservation of 27 We have referred to the above facts for the purpose percent is given firstly to be enjoyed by the 'poorer of showing that the fixation of ceiling limit on economic sections' and only the unfilled vacancies, if any, can be criterion was not successful and that for identifying the availed of by others. As I have already held, the view 'weaker sections', ceiling limit is not the proper test, once expressed by the Constitution Dench in Balaji is more the backward class is identified and ascertained. acceptable to me. 73

Further, it is clear for the afore-mentioned reasons of appointments or posts in favour of 'any backward t tlie Executive while making the division of sub- class of citizens' in the Central Government services Jsification has not properly applied its mind to vari- have not yet been put in practice in spite of the impugned ; factors, indicated above which may ultimately de- OMs. It is after 42 years since tlie advent of our Consti­ t the very purpose of the division or sub-classification, tution, the Government is taking the first step to imple­ hat view, para 2(i) not only becomes constitutionally ment this scheme of reservation for OBCs under Article alid but also suffers from the vice of non-application 16(4). In fact, some of the States have not even introduced Tiind and arbitrariness. policy of reservation in the matters of public employ­ ment in favour of OBCs. For the aforementioned reasons, I am of the firm w that the division made in the amended OM divid- In opposition, it is said that only a very minimal ; a section o f the people as 'poorer sections' and percentage of BCs have stepped into All l^dia Civil ving the remaining as 'non-poorer sections' on eco- Services or any other public services by competing in the mic criterion from and among the same unit of iden- mainstream along with tihe candidates of advanced classes ed and ascertained SEBCs, having common charac- despite the fact that their legs are fettered by social istics the primary of which is the social backwardness backwardness and hence it would be very uncharitable listed in the report of the Commission, is not permis- to suddenly deprive, their children of the benefit of 'le and valid and such a division or sub-classification reservation under Article 16 (4) merely on the ground iable to be struck down as being violative of clause (4) that their parents have entered into Government services Article 16 of the Constitution. especially when those children are otherwise entitled to the preferential treatment by falling within the definition A further submission has been made stating that the of 'backward class'. It is further stressed that those nefits of reservation are often snatched away or eaten children so long as they are wearing the diaper of social I by top creamy layer of socially advanced backward backwardness should be given sufficient time till the iss who consequent upon their social development no Government realises on review tliat they are completely iger suffer from the vice of social backwardness and free from tlie shackles of social backwardness and have lo are in no way handicapped and who by their high equated themselves to keep pace with the advanced ofessional qualifications occupy upper echelons in the classes. There are a few decisions of this Court which I iblic services and therefore, the children of those so- have already referred to, holding the view that even if a illy advanced section of tJie people, termed as 'creamy few individuals in a particular caste, community or y^er' should be completely removed from the lists of group are socially and educationally above the general ackward Classes' and they should not be allowed to average, neither that caste nor that community or group impete with the children of socially under-privileged can be held as not being socially ba(^kward. (Vide !ople and avail the quota of reservation. By way of Balaram). ustration it is said that if a member of a designated ickward class holds a high post by getting through tlie In the counter affidavit da ted 30th October 1990 filed lalifying examinations of IAS, IFS, IPS, or any otlier All by the Union of India sworn by the Additional Secretary dia Service, there can be no justification in extending to the Government of India in the Ministry of Welfare, the e benefit of reservation to their children, because the following averments with statistical figures are given : ►cial status is well advanced and they no longer suffer om the grip of poverty. "Based on the replies furnished by 30 Central Ministries and Departments and 31 attached On the same analogy, it has been urged that the and subordinate offices and administrative con­ lildren of other professionals such as Doctors, Engi- trol of 14 Ministries (which may be treated a$ 2ers, Lawyers etc. etc. also should not be given the sufficiently representative of the total picture)' mefit of reservation, since in such cases, they are not the Commission arrived at the following xrially handicapped. figures :-

No doubt the above argument on the face of it Category of Employees : All classes ppears tobe attractive and reasonable. But the question Total number of employees : 15,71,638 whether those individuals belonging to any particular Percentage of SC/ST 18.72 iste, community or group which satisfies the test of Percentage of OBCs 12.55 ackward class should be segregated, picked up and irown over night out of the arena of backward class. (Extracted from page 92 of First Part of Mandal )ne should not lose sight of the fact that the reservation Commission Report)" 74 The above figures clearly show that the SEBCs are entitled for the benefit of reservation in the decision of inadequ^»tely represented in the Services of the Goyem- the Government so long that decision does not suffer ment of Ii^dia and that SCs and STs in spite of reservation from any constitutional infirmity. have not yet been able to secure representation commen­ surate W^ith the percentage of reservation provided to Added to the above submission, it has been urged them. that some pseudo communities have smuggled into the backward classes and they should be removed from the Meeting analmost similar argument that the 'creamy list of OBCs, lest those communities would be eating layers' aw snatching away the benefits of reservation, away the major portion of the reservafion which is meant Chinnappa Reddy, J observed ih Vasanth Kumar to the only for the true and genuine backward classes. There following eff^t: cannot be any dispute that such pseudo communities should be weeded out from the list of backward classes ^'One must, however, enter a caveat to the criti- but that exercise must be done only by the Government cism that the benefits of reservation are often on proper verification. snatched away by the top creamy layer of back­ ward class or caste. That a few of the seats and The idenfification of the backward classes by the postsreserved for backward classes are snatched Mandal Commission is not with a seal of perpetual away by the more fortunes among them is not to finality but on the other hand it is subjected to say -that reservation is not necessary. This is reviewability by the Government. The Mandal Commis­ bound to happen in a competitive society such as sion itself in paragraph 13.40 in Chapter XIII has sug­ ours. Are not the unreserved seats and posts gested that "die enHre scheme should be reviewed after snatched away, in the same way, by the top 20 years." Mr. Jethmalani suggested Uiat the list may be creamy layers amongst them on ^ e same prin­ reviewed at the interval of 10 years. There are judicial ciple of merit on which the non reserved seats pronouncements to the effect that the Government has are taken away by the top layers of society. How got the right of reviewability. There cannot be any can it be bad if reserved seats and posts are controversy indeed there is none - that the Government snatched away by the creamy layer of backward which is certainly interested in the maintenance of stand­ classes, if such snatching away unreserved posts ards of its administrarion, possesses and retains its by the top creamy layer of society itself is not sovereign authority to adopt general regulatory meas­ bad?" ures within the constitutional framework by reviewing any of its schemes or policies. The interval of tlie period The above observation, in m y view , is an apt reply to at which the review is to be held is within the authority such a criticism with which 1 am in full agreement. To and discretion of the Government, but of course subject quote Krishna Iyer, J '"For every cause there is a martyr". to the consHtutional parameters and well settled princi­ I am also reminded of an adage," One swallow does not ples of judicial review. Therefore, it is for the Govern­ make the summer." ment to review tlie lists at any point of time eind take a decision for the exclusion of any pseudo community or Reverting to the case on hand, the O.M. does not caste smuggled into the backward class or for inclusion speak of any "creamy layer test'. It cannot be said by any of any other community which in the opinion of the stretch of im a^ation that the Government was not Government suffers from social backwardness. aware of som^ few individuals having become both socially and educationally above the general average It may be recalled that the petitioner herself in W.P. and entered in the All India Services or any other Civil N o . 930 of 1990 has stated," .....the Courts cannot sit as Services. Despite the above fact, the Government has a super legislature to determine and decide the social accepted the listed groups of SEBCs as annexed to the issue as to who are socially and educationally back­ Report and it has not thought it prudent to eliminate w ard...... " those individuals. Therefore, in such circumstances, I have my own doubt whether the judicial supremacy can It will be appropriate to refer to an observation of work in the broad area of social policy or in the great the five-judges Bench of this Court (which heard vortex of ideological and philosophical decisions direct­ initially these matters) in its order dated 8th August ing the exclusion of any section of the people from the 1991 stating: accepted list of OBCs on tlie mere ground that they are all 'creamy layers' which expression is to be tested with "The validity of tlie Mandal Commission Report reference to various factors or make suggestions for as such is not an issue before us...... " exclusion of any section of the people who are otlierwise 75 A three-J tJdge Bench of this Court comprising of August 1990 which has not been supersed, rescinded or Ranganath Mishra, K.N. Singh, M.H. Kar\ia, JJ (as the repealed but "deemed to have been amended." learned Chief Justices then were) has observed in their order dated 2lst September 1990 that the implementa­ Before parting with this aspect of the matter, I would tion of executive decisions is in the hands of the Govern­ like to express my view that the 'poorer sections' of the ment of the d0iy but constitutional validity of such action SEBCs may be provided with various kinds of conces­ is a matter for Court's examination. sions and facilities such as educational concessions, special coaching facilities, financial assistance, relaxa­ Thereafter, a Constitution Bench of this Court by tion of upper age limit, increase of number of attempts their order dated 1st October 1990 explained the earlier etc. for government services with a view to give them order stating: "Three out of us sitting as a Bench on the equal opportunity to compete and keep pace with the 21 st September 1990 made an order after hearing partiesadvanced sections of the people. wherein we had indicated that the decision to implement three aspects of the recommendations of the Mandal Whether 10% reservation in favour of 'other economically Commission was a political one and ordinarily the Court backward section is permissible under Article 16? would not interfere with such a decision/' N ow I shall pass on to paragraph 2 (ii) of the amended Therefore, when this Court is not called upon to lay OM which reveals that 10 percent of the vacancies in civil a test or give any guideline as to who are all to be posts and services ujider the Government of India shall eliminated from the listed groups of the Report, there is be reserved for other economically backward sections of no necessity to lay any test mucHless 'creamy layer test'. the people who are not covered by any of the existing 1 find no grey area to be clarified and consequently hold schemes of reservation. that what one is not free to do directly cannot do it indirectly by adopting any means. Therefore, the argu­ This reservation of 10 percent cannot be held to be ment of creamy layer pales into insignificance. constitutionally valid as concluded by my learned bro­ ther B.P. Jeewan Reddy, J for the reasons, mentioned in Further I hold that all SEBCs brought in the lists of paragraph 115 of his judgement. I am in full agreement the Commission which have been accepted and ap­ with his conclusion on this issue of 10% reservation. proved by the Government should be given equal oppor­ tunity in availing the benefits of the 27 percent reserva­ Whether Art. 16 (4) contemplates reservation in the matter of tion. In other words, the entire 27% of the vacancies in promotion? ' ' civil posts and services under the Government of India shall be reserved and extended to all the SEBCs. In Mohan Kumar Singhania V. Union o f India 1992 (Supp) 1 s e e 594, a three-judge Bench of this Court to In fact, the first OM dated 13th August 1990 does not which I was a party has taken a view that once candidates make any division or sub-classification as in the even from reserved communities are allocated and amended OM. Para 2(i) of the first OM reads, "27% of appointed to a Service based on their ranks and perform­ the vacancies in civil posts and services in the Govern­ ance and broug^it under the one and same stream of ment of India shall be reserved for SEBC". In reading category, then they too have to be treated on par witfi all para 2 (i) of the first OM in juxtaposition with para other selected candidates and there cannot be any ques­ 2 (i) of the amended OM, no basic difference in the tion of preferential treatment at that sta^ on the ground policies of the two Governments is spelt out; in that both that they belong to reserved community though they the impugned OMs have made 27% reservation in civil may be entitled for all other statutory b^efits such as posts and services under the Goverrmient of India for relaxation of age, the reservation etc. Reservation re^ SEBCs on the basis of the recommendations of the ferred to in that context is referable to the reservation at Second Backward Classes Connmission (Mandal Re­ the initial stage or the entry point as could be gathered' port). The only difference between the two impugned from that judgement. OMs is that in the amended OM a division among the SEBCs is made as 'poorer sections' and others that the It may be recalled, in this connection, the view 'poorer sections' is firstly allowed to avail the benefit of expressed by Chief Justice Ray in Thomas that "efficiency reservation and that others to avail the benefit of reser­ has been kept in view and not sacrificed" vation of only the unfilled vacancies. Therefore, by striking dow n para 2 (i) of the amended OM as unconsti­ Hence, I share the view of my learned brother B.P. tutional, I hold that there is no legal impediment in Jeewan Reddy, J holding that "Article 16 (4) does not implementing para 2 (i) of the first QM dated 13th permit provision for reservation in the matter of promo­ 76 tions and tha t this rule shall, however, have only pro­ Government, of course subject to the consti­ spective operation and shall not affect the promotions tutional parameters and well settled princi­ already mad^/ whether made on regular basis or on any ples of judicial review. other basis"' the direction given by him that wher­ ever reservations are provided in the matter of promo­ 8) The expression 'poorer sections' mentioned tion such reservation may continue in operation for a in para 2(i) of the amended Office Memoran- period of fiv^ years from this day. dum of 1991 denotes a division am ong SEBCs on economic criterion. Therefore, no divi­ In Summation sion or sub-classification as 'poorer sections' and otlier backward class (non poorer sec­ 1) Article 16 (4) of the Constitution is neither an tions) out of the identified SEBCs can be exception nor a proviso to Article 16 (1). It is made by application of'means test' based on exhaustive of all the reservations that can be economic criterion. Such a division in the made in favour of backward class of citi­ same identified and ascertained unit con­ zens. It has an over-riding effect on Article sisting of SEBCs having common character­ 16 (1) and (2). istics and attributes, the primary character­ istic or attribute being the social backward­ 2) No Reservation can be made under Article ness is violative of clause (4) of Article 16 of 16 (4) for classes other than backward the Constitution. Hence, the division of the classes. But under Article 16 (1), reservation SEBCs as 'poorer sections' and others, can be made for classes, not covei-ed by brought out in para 2(i) of the impugned Article 16 (4). amended Office Memorandum dated 25th September 1991 is constitutionally invalid 3) The expression, "backward class of citizens' and impermissible. Accordingly, para2(i) of occurring in Article 16 (4) is neither defined the said amended Office Memorandum is nor explained in the Constitution. However, struck down. the backward class or classes can certainly be identified in Hindu society with refer­ 9) No maximum ceiling of reservation can be ence to castes along with other criteria such fixed under Article 16 (4) of the Constitution as traditional occupation, poverty, place of for reservation of appointments or posts in residence, lack of education etc. and in com­ favour of any backward class of citizens "in munities where caste is not recognised by the Services under tlie State". The decisions the above recognised and accepted criteria fixing the percentage of reservation only except caste criterion. uptothe maximumof50% are unsustainable.

4) In the process of identification of backward 10) As regards the reservation in the matter of class of citizens under Article 16 (4) among promotion under Article 16(4), I am in agree­ Hindus, caste is a primary criterion or a ment with conclusion No. (7) made in para­ dominant factor though it is not the sole graph 121 in Part VII of the judgement of my criterion. learned brother, B.P. Jeevan Reddy, J.

5) A ny provision under Article 16(4) is not 11) I also agree with conclusion No. (8) of para­ necessarily to be made by the Parliament or graph 121 of the judgement of my learned Legislature. Such a provision could also be brother, B.P. Jeevan Reddy, J quo the excep­ made by an Executive order. tion to the rule of reservation to certain Services and posts. 6) The power conferred on the State under Article 16(4) is one coupled with a duty and, 12) The reservation of 10% of the vacancies in therefore, theState has to exercise tliat power civil posts arid services in favour of oUier for tlie benefit of all tliose, namely, back­ economically backward sections of the peo­ ward class for whom it is intended. ple who are not covered by any oUier scheme of the reservation as mentioned in para 2 (ii) 7) Tlie provision for reservation of appoint­ of tl'ie impugned amended Office Memoran­ ments or posts in favour of any backward dum dated 25th September 1991 is constitu­ class of citizens is a matter of policy of the tionally invalid and it is accordingly struck 77 down. In this regard, I am also in agreement unamended office memorandum dated 13 th with cof»clusion No.(l 1) of paragraph 121 of August 1990. the judgerrient of m y learned broker, B.P. Jeevan Keddy, J. 17) The Government of India and the State Governments have to create a permanent 13) No section of the SEBCs can be excluded on machinery either by way of a Commission the ground of creamy layer till the Govern­ or a Committee within a reasonable time for ment - Central and State - takes a decision in examining the requests of inclusion or this regard on a review on the recommenda­ exclusion of any caste, community or group tions o f a commission or a Committee to be of persons on the advice of such commission appointed by the Government. or Committee, as the case may be, and also for examining the exclusion of any pseudo 14) Para 2(i) and (ii) of the amended Office community if smuggled into the list of Memorandum dated 25th September 1991 OBCs. The creation of such a machinery in for the reasons given in my judgement and the form of a Commission or Committee the conclusions drawn above, are struck does not stand in the way of immediate down as being violative of Article 16 (4). implementation of the office memorandum dated 13.8.1990 and the purpose of creating 15) The impugned Office Memorandum dated such machinery is for future guidance. 13th A ugust 1990 is held valid and enforce­ able. So there is no legal impediment in 18) I am also of the same view of my learned immediately enforcing and implementing brother, B.P. Jeevan Reddy, J that it is not this first Office Memorandum of 1990. necessary to send the matters back to the Constitution Bench of five-judges. 16) In Writ Petition No. 1094 of 1991 (Sreenarayana Dharma Paripalana Yogam In the result, for the reasons mentioned in my judge­ Vs. Union of India), there is a prayer (prayer ment and the conclusions drawn in the summation, the 'b'), inter alia, for issuance of a writ of w rit petition No. 1094 o f 1991 is partly allow ed to tlie mandamus directing the respondent to im­ extent indicated above and all other Writ Petitions, plement the impugned unamended office Transferred Cases and Interlocutory Applications are memorandum dated 13th August 1990. In disposed of accordingly. No costs. the light of my conclusions, striking down the amended office memorandum dated 25th September 1991,1 direct the Union of N ew Delhi ...... s d / ...... J India to immediately implement the November 16,1992 (S. RATNAVAEL PANDIAN)