\^OUJMli 1] 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 w m i 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 <JGScribed as its original sin, the Indian society lower castes, for centuries. It was not till the advent of has, for ages, remained stratified. The origin of the the British Rule in this country that the doors of educa­ caste system is shrouded in speculation, neither the his­ tion were opened to them as well as to women who torians nor the sociologists being able to trace it in its were considered as much disentitled to education as the present form to any particular period of time or region, Shudras. Naturally, all the posts in the administrative or to a specific cause or causes. The fact, however, machinery (except those of the menials) were manned remains that it consists of mobility-tight hierarchical so­ by the higher castes, which had the monopoly of learn­ cial comp^rtinents. Every individual is Ixim in and, ing. The concentration of the executive power in the therefore/ vvitli a particular caste which he cannot hands of the select social groups had its natural conse­ change. Hitherto, he had to follow the occupation as­ quences. The most invidious and self-perpetuating con­ signed to his caste and he could not even think of sequence was the stranglehold of a few high castes over changing it. The mobility to upper casle is forbidden, the administration of the country from the lower to the even if to-day he pursues the professions arid occupa­ higher rungs, to the deliberate exclusion of others. Con­ tions of the upper caste. Ho continues to be looked sequently, all aspects of life were contmlled, directed upon as a member of the lower caste even if his and regulated mostly to suit the sectional interests of a achievements arc higher than of those belonging to the small section of the society which numerically did not higher castes. In social intercourse, he has to take his exceed 10% of the total population of the country. The assigned caste-place. The once casteless and state of the health of the nation was viewed through unireligious Indian society of Vedic times became multi- their eyes, and the improvement in its health was ef­ factious and multi-religious mainly on account of the fected according to their prescription. It is naive to rebellion of the lower castes against the tyranny of the believe tliat the administration was carried on impar­ caste system and their exploitation by the higher castes. tially, that the sectional interests were subordinated to Various sects emerged within the Hindu fold itself to the interests of the country and that justice was done to challenge the inequitous system. Distinct religions like tliose who were outside the ruling fold. This state of Buddhism, Jainism and Sikhism were born as revolts affairs continues even till this day. against casteism. When, therefore, first Islam and then Christianity made their entries here and ruled this 6. To accept that after the inauguration of the Con­ country, many from the lower castes embraced them to stitution and the introduction of adult franchise, there escape the tyranny and inequity, while some from the has been a change in the administrative power-balance higher castes for pelf and power. However, the change is to be unrealistic to the point of being gullible. Un­ of religion did not always succeed in eliminating castes. doubtedly, the lower castes and classes who constitute The converts carried with them their castes and occupa­ the overwhelming majority of no less than 75% of the tions to the new religions. The result has been that even population have secured for the first time in the history among Sikhs, Muslims and Christians casteism prevails of this country, an advantage in terms of political in varying degrees in practice, their preachings not­ leverage on account of their voting strength. We do see withstanding. Only Zoroastrianism is an exception to today that the political executive is not only fairly repre­ the rule; but that is because entry into it by conversion sentative of the lower classes but many times dominant­ is impermissible. Casteism has thus been the bane of ly so. But that is on account of the voting power and the entire Indian society, the difference in its rigidity not on account of social, educational or economic ad- being of a degree varying from religion to religion and vancemement made by them. The entry into the ad­ from region to region. ministrative machinery does not depend on voting strength but on the competitive attainments requisite 5. One of the worst effects of casteism with which for the relevant administrative field and post. Those we are directly concerned in the present case, was that attainments can be had only as a result of the cumula- live prngn-’ss on social, educational and economic ministrative executive wields th.e pov.'ci, (they can fi-onls.