TaxTMI 
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1985 (5) TMI 257
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....the Court in giving expression to its views without reference to specific facts. But, institutions profit by well-meaning innovations. The facts will appear before the Commission and it will evolve suitable tests in the matter of reservations. I cannot resist expressing the hope that the deep thinking and sincerity which has gone into the formulation of the opinions expressed by my learned Brethren will not go waste. The proposed Commission should give its close application to their weighty opinions. Mine is only a skeletal effort. I reserve the right to elaborate upon it, but the chances of doing so are not too bright. 2. I would state my opinion in the shape of the following propositions : 1. The reservation in favour of scheduled castes and scheduled tribes must continue as at present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation. 2. The means tes....
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....chy have put the movement in reverse gear so as to move downwards (Anulom) in order to be identified as a group or class of citizens socially and educationally backward. As the awareness of concessions and benefits grows with consequent frustration on account of their non-availability confrontation develops amongst various classes of society. The Constitution promised an egalitarian society. At the dawn of independence Indian Society was a compartmentalised society comprising groups having distinct and diverse life styles. It was a caste ridden stratified hierarchical society. Though this is well accepted, the concept of caste has defied a coherent definition at the hands of jurists or sociologists. 4. In the early stages of the functioning of the Constitution, it was accepted without dissent or dialogue that caste furnishes a working criterion for identifying socially and educationally backward class of citizens for the purpose of Article 15(4). 5. This was predicated on a realistic appraisal that caste as a principle of social order has persisted over millennia if much more disorderly and asymmetrical in practice than classical Hindu socio legal theory depicted it'. Hut....
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....result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. The problem of determining who are socially backward classes, is undoubtedly very complex, but the classification of socially backward citizens on the basis of their castes alone is not permissible under Article 15(4). The Court could foresee the danger in treating caste as the sole criterion for determining social and educational backwardness. The importance of the judgment lies in realistically appraising the situation when it uttered the harsh but unquestionable truth that economic backwardness would provide a much more reliable yardstick for determining social backwardness because more often educational backwardness is the outcome of social backwardness. The Court drew clear distinction between 'caste' and 'class'. The attempt at finding a new basis for ascertaining social and educational backwardness in place of caste reflected in this decision. Clairvoyance in this behalf displayed in our opinion is praiseworthy. 10. In T. Devadesan v. The Union of India and Anr. (1965)IILLJ560SC the petitioner challenged the carry forward rule i....
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....rections for collecting further material relevant to be subject. After the material as directed earlier was collected the matter was placed before the court and the decision is reported in Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. [1969] 1 S.C.R. 103 The Court observed that the expression 'backward class' is not used as synonymous with 'backward caste' or 'backward community'. The members of an entire caste or community may, in the social, economic and educational scale of values at a given time, be backward and may, on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation, the expression class' may mean a homogenous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like, but for purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot b....
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....determine social and educational backwardness. 16. In State of Uttar Pradesh v. Pradesh Tandon and Ors. [1975]2SCR761 reservations in favour of rural areas was held to be unsustainable on the ground that it cannot be said as a general proposition that rural areas represents socially and educationally backward classes of citizens. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. 17. In State of Kerala and Anr. v. N-M. Thomas and Ors. (1976)ILLJ376SC the constitutional validity of Rule 13AA giving further exemption of two years to members belonging to Scheduled Tribes and Scheduled Castes in the service from passing the tests referred to in Rule 13 or Rule 13A, was questioned. The High Court struck down the rule. Allowing the State appeal, Mathew, J. in his concurring judgment held that to give equality of opportunity for employment to the members of Scheduled Castes and Scheduled Tribes, it is necessary to take note of their social, educational and economic backwardness. Not only is the Directive principles embodied in Article 46 binding on the law makers as ordinarily understood, but it should equally inform and illuminate t....
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....by ignored perceived realities. A perceptive viewer of judicial intervention observed that the courts turned out to be more limited as a vantage point then I naively assumed at the outset. They act as a balance wheel channelling compensatory policies and accommodating them to other commitments, but it is the political process that shapes the larger contour of these policies and gives them their motive force. Official doctrine-judicial pronouncements or administrative regulations-proved insufficient guide to the shape of the policies in action and the result they produced.' Marc Galanter-Competing Equalities, 1980 p. XVIII. The Indian social scene apart from being disturbing presented the picture of stratified society hierarchically fragmented. At the lowest rung of the ladder stand Scheduled Castes and Scheduled Tribes and any preferential treatment in their favour has more or less ment with judicial approval. But when it came to preferential treatment or affirmative action or what is also called compensatory discrimination in favour of socially and educationally backward classes of citizens, the caste ridden society raised its ugly face. By its existence over thousands of year....
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....resently pointed out that Mandal Commission had serious reservations about caste criterion. Most of these Commissions and the Government orders based their recommendations used communal units to discriminate the backward class. Rane Commission of Gujarat has chalked out a different path, rejecting caste as the basis for ascertaining social and educational backwardness. The question we must pose and answer is whether caste should be the basis for determining social and educational backwardness. In other words, by what yardstick, groups which are to be treated as socially and educationally backward are to be identified? To simplify the question : should membership of caste signify a class of citizens as being socially and educationally backward? If 'caste' is adopted as the criterion for determining social and educational backwardness does it provide a valid test or it would violate Article 15(1) which prohibits discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. 22. What then is a caste ? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizon....
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....ntially different from the traditional structure and caste councils. Economic differentiation amongst the members of the caste has become sharp, but not so sharp as to bury caste sentiments and ties. 23. If the transformation of the caste structure as herein indicated is realistically accepted, should the caste label be still accepted as the basis for determining social and educational backwardness. In a recent paper by the noted sociologist Shri I.P. Desai (Alas, he is no more), it has been ably argued that not a caste but the class or the social group should be examined with a view to determining their social and educational backwardness. Caste in rural society is more often than not mirrored in the economic power wielded by it and vice vessa. Social hierarchy and economic position exhibit an undisputable mutuality. The lower the caste, the poorer its members. The poorer the members of a caste, the lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power wielded by an individual or class in rural society. Social status and economic power are so woven and fused into the caste sys....
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....e likely that severally synonymy of the castes listed backward have been left out. Certain castes are known by a number of synonymy which vary from one region to the other and their complete coverage is almost impossible. Mandal Commission found a way out by recommending that it' a particular caste has been treated as backward then all its synonyms whether mentioned in the State lists or not should also be treated as backward. Mandal Commission Report Vol. Cli. XII p. 55 Gujarat Government was forced to appoint a second commission known as Rane Commission. Rane Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji's case that 'Social backwardness is on the ultimate analysis the result of poverty to a very large extent.' The Commission noticed that some of the castes just for the sake of being considered as socially and educationally backward, have degraded themselves to such an extent that, they had no hesitation in attributing different types of vices to and associating other factors indicative of backwardness, with their castes. The Co....
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....urped by the economically well-placed section in the same caste. To illustrate, it may be pointed that some years ago, I came across a petition for special leave against the decision of the Punjab and Haryana High Court in which the reservation of 2-1/2" for admission to Medical and Engineering College in favour of Majhabi Sikhs was challenged by none other than the upper crust of the members of the Scheduled Castes amongst Sikhs in Punjab, proving that the labelled weak exploits the really weaker. Add to this, the findings of the Research Planning Scheme of Sociologists assisting the Mandal Commission when it observed : 'while determining the criteria of socially and educationally backward classes, social backwardness should be considered to be the critical element and educational backwardness to be the linked element though not necessarily derived from the former.' Part 3 Appendix XIII, p. 99 of the Report of the Team The team ultimately concluded that 'social backwardness refers to ascribed status and educational backwardness to achieved status, and it considered social backwardness as the critical element and educational backwardness to be the linked though not deri....
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....nd educationally backward, about the benefits of preferred treatment, it would unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes. This has to be avoided at any cost. 29. If poverty is to be the criterion for determining social and educational backwardness, we must deal with a fear expressed by sociologists. It is better to recapitulate these aspects in the words of a sociologist : Now, if the government changes the criteria of reservation from caste to class, persons from the upper strata of the lower castes who are otherwise not able to compete with the upper strata of the upper castes despite the reservations will be excluded from the white collar jobs. And the persons from the lower strata of lower castes will not be able to compete with their counterpart of the upper castes. They too will be excluded. This will bridge the gap which is otherwise widening between the rich and the poor of the upper castes and it will strengthen their caste identity. It will wipe out the small poor strata of the upper castes at the cost of the poor strata of lower castes, and in the name of secularism. In co....
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....appoint a Commission to determine constitutionally sound and nationally acceptable criteria for identifying socially and educationally backward classes of citizens for whose benefit the State action would be taken. This does not purport to be an exhaustive essay on guidelines but may point to some extent, the direction in which the proposed Commission should move. O. Chinnappa Reddy, J. 32. Over three decades have passed since we promised ourselves "justice, social, economic and political" and "equality of status and opportunity". Yet, even today, we find members of castes, communities, classes or by whatever name you may describe them, jockeying for position, trying to elbow each other out, and, viewing with one another to be named and recognised as 'socially and educationally backward dashes', to quality for the 'privilege' of the special provision for advancement and the provision for reservation that may be made under Article 15(4) & 16(4) of the Constitution. The paradox of the system of reservation is that it has engendered a spirit of self denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of ....
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....ion and employment under the State are thought to be two such bridges. Hence the special provision for advancement and for reservation under Articles 15(4) and 16(4) of the Constitution. 34. Before we attempt to lay down any guidelines for the benefit of the Commission proposed to be appointed by the Karnataka Government, will do well to warn ourselves and the proposed Commission against the pitfalls of the 'traditional' approach towards the question of reservation for Scheduled Castes Scheduled Tribes and other backward classes which has generally been superior, elitist and, therefore, ambivalent. A duty to undo an evil which had been perpetrated through the generations is thought 'to betoken a generosity and farsightedness that are rare among nations'. So a superior and patronising attitude is adopted. The result is that the claim of the Scheduled Castes and Scheduled Tribes and other backward classes to equality as a matter of human and constitutional right is forgotten and their rights are submerged in what is described as the 'proferential principle' or 'protective or compensatory discrimination', expression borrowed from American jurispruden....
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.... secure 70, 80 or even 90% of the marks? Surely, a child who has been able to jump so many hurdles may be expected to do better and better as he progresses in life. If spring flower he cannot be, autumn flower he may be. Why than, should he be stopped at the threshold on an alleged meritarian principle? The requirements of efficiency may always be safeguarded by the prescription of minimum standards. Mediocrity has always triumphed in the past in the case of the upper classes. But why should the so-called meritarian principle be put against mediocrity when we come to Scheduled Castes, Scheduled Tribes and backward classes? 36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned. Efficiency, it seems, will be impaired if the total reservation exceeds 50 per cent; efficiency, it seems, will suffer if the 'carry forward' rule is adopted; efficiency, it seems, will be injured if the rule of reservation is extended to promotional posts. From the protests against reservation exceeding 50 per cent or extending to promotional posts and against the carry-forward rule, one would think that the civil service is a Heavenly Paradise into which only....
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.... possesses among other qualities the capacity to understand with sympathy and, therefore, to tackle bravely the problems of a large segment of population constituting the weaker sections of the people. And, who better than the ones belonging to those very sections? Why not ask ourselves why 35 years after indpendence, the position of the Scheduled Castes, etc. has not greatly improved? Is it not a legitimate question to ask whether things might have been different, had the District Administrators and the State and Central Bureaucrats been drawn in larger numbers from these classes? Courts are not equipped to answer these questions, but the courts may not interfere with the honest endeavours of the Government to find answers and solutions. We do not mean to say that efficiency in the civil service is unnecessary or that it is a myth. All that we mean to say is that one need not make a fastidious fetish of it. It may be that for certain posts, only the best may be appointed and for certain courses of study only the best may be admitted If so, rules may provide for reservations for appointment to such posts and for admission to such courses. The rules may provide for no appropriate me....
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....anned, as far as is possible to emphasise and strengthen, not the class differences which divide but the common humanity which unite, them.... 37. But the controversy between the meritarian and the compensatory principles cannot be allowed to cloud the issues before us. An intelligible consequence of the fundamental rights of equality before the law, equal protection of the laws, equality of opportunity, etc., guaranteed to all citizens under our Constitution is the right of the weaker sections of the people to special provision for their admission into educational institutions and representation in the services. Appreciating the realities of the situation, and least there by any misapprehension, the Constitution has taken particular care to specially mention this right of the weaker sections of the people in Articles 15(4) and 16(4) of the Constitution. In view of Articles 15(4) and 16(4), the so-called controversy between the meritarian and compensatory principles is not of any great significance, though, of course, we do not suggest efficiency should be sacrificed. The question really is, who are the scheduled castes, scheduled tribes and backward classes, who are entitled to....
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.... of social inequality. According to Weber, the three dimensions are class, status and power. A person's class-situation, in the Weber sense, is what he shares with others, similarly placed in the process of production, distribution and exchange, a definition of class which is very near to that of the Marxist conception. The inequality of class depends primarily on inequality of income and to some extent on an equal opportunity for upward mobility. A persen's class, according this definition, is his shared situation in the economic hierarchy. Status, the second of Weber's three dimensions is generally determined by the style of consumption, though not necessarily by the source or amount of income. An impoverished aristocrat is sometimes sought after by the nouveau riche. A desk worker considers himself superior to a manual worker. A professional like a doctor or a lawyer is thought to be of superior status than those belonging to several other walks of life. Status seems to depend on social attributes and styles of life, including dress, speech, occupation, etc., on what R.H. Tawney describes as 'the tedious vulgarities of income and social position.' Similarly, ....
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....te system, class or cursory, will at once reveal the firm links which the caste system has with economic power. Land and learning, two of the primary sources of economic power in India, have till recently been the monopoly of the superior castes. Occupational skills were practised by the middle castes and in the economic system prevailing till now they could rank in the system next only to the castes constituting the landed and the learned gentry. The lowest in the hierarchy where those who were assigned the meanest tasks, the out-castes who wielded no economic power. The position of a caste in rural society is more often than not mirrored in the economic power wielded by it and vice versa. Social hierarchy and economic position exhibit an undisputable mutuality. The lower the caste, the poorer its members. The poorer the members of a caste lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power wielded by au individual or class in rural society. Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hesitation, say....
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.... Constitution makers thought fit to make special provision are the Scheduled Caste, the Scheduled Tribes, the Anglo-Indian community and the socially and educationally backward classes. 42. Articles 330 and 332 provide for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People and the Legislative Assembles of the State. Articles 331 and 333 provide for representation of the Anglo-Indian Community in the House of the People and the Legislative Assemblies of the States. Article 334 provides that the reservation and special representation are to cease after 30 years. There is no reservation or special representation for socially and educationally backward classes either in the House of the People or in the Legislative Assemblies of the State. 43. Article 335 imposes a constitutional obligation to take into consideration the claims of members of the Scheduled Castes and Scheduled Tribes, in the making of appointments to the services and posts in connection with the affairs of the Union or of the States, consistently with the maintenance of efficiency of administration. Articles 336 and 337 make certain special provisions for the Anglo-Indian Com....
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....d the Legislative Assemblies of the States, there is no such provision for reservation of seats for or reservation socially and educationally backward classes in the House of the People or the Legislative Assemblies of the States. Again, while under Article 335, there is a constitutional obligation to consider the claims of the members of the Scheduled Castes and Scheduled Tribes in the making of appointments to services and posts in connection with the affairs of the Union and the States and there is a special provision for the Anglo-Indian Community in certain services for a limited period. There is no corresponding provision for the socially and educationally backward classes. But there is a provision under Article 340 of the Constitution for the appointment of a Commission to investigate the conditions of socially and educationally backward classes and to recommend the steps to be taken to ameliorate such conditions. 47. Article 14 of the Constitution, stated in positive language, guarantees to every person equality before the law and equal protection of the laws, Article 15(1) prohibits the State from discriminating against any citizen on grounds only of religion, race, cas....
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....ointments is contemplated by Article 16(4). 'The backward classes of citizens' referred to in Article 16(4), despite the short description, are the same as 'the socially and educationally backward classes of citizens and the scheduled castes and the Scheduled Tribes', so fully described in Article 15(4) : Vide Trilokinath Tiku v. State of Jammu and Kashmir and other cases. However, for the purposes of Article 16(4) it is further necessary that the Backward classes should not be adequate in the services. Again, and quite obviously, 'special provision for advancement' is a wide expression and may include many more things besides 'mere reservation of seats in colleges.' It may be by way of financial assistance, free medical, educational and hostel facilities, scholarships, free transport, concessional or free housing, exemption from requirements insisted upon in the case of other classes and so on. We are not, for the time being, concerned with the mode advancement, other than reservation of seats in colleges, we observe that under Article 16(4), reservation is to be made to benefit those backward classes, who in the opinion of the Government are not ad....
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....erit pool". The reservation was generally made on the basis of the report of the Nagan Gowda Committee appointed by the State Government. The court found that the Committee approached the problem of enumerating and classifying these socially and educationally backward communities on the basis that social backwardness depended substantially on the caste to which the community belonged, though it recognised that economic condition may be a contributing factor. According to the court, the Committee virtually equated 'classes' with castes'. The court observed that in dealing with the question as to whether any class of citizens were socially backward or not, it might not be irrelevant to consider the caste of the said citizens but the importance of caste should not be exaggerated. It was observed that caste could not be made the sole or dominant test to determent the social backwardness of group or classes of citizens. It was noted that social backwardness was in the ultimate analysis the result of poverty, to a very large extent. It was also noticed that the occupation of citizens might also contribute to make classes of citizens socially backward. As the Nagam Gowda Commi....
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....al scene in India would at once recognise the position that the Scheduled Castes occupy a peculiarly degraded position and are treated, not as persons of caste at all, but as outcastes. Even the other admittedly backward classes shun them and treat them as inferior beings. It was because of the special degradation to which they had been subjected that the Constitution itself had to come forward to make special provision for them. There is no point in attempting to determine the social backwardness of other classes by applying the test of nearness to the conditions of existence of the Scheduled Castes. Such a test would practically nullify the provision for reservation for socially and educationally Backward Classes other than Scheduled Castes and Tribes. Such a test would perpetuate the dominance of the existing upper classes. Such a test would take a substantial majority of the classes who are between the upper classes and the Scheduled Castes and Tribes out of the category of backward classes and put them at a permanent disadvantage. Only the 'enlightened' classes of body will capture all the 'open' posts and seats and the reserved posts and seats will go to the S....
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....is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task. It will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. 52. The Balaji Court then proceeded to consider the question of educational backwardness. The Nagan Gowda Committee had dealt with the question on the basis of the average of the student population in the last three High school classes of all High Schools in the State in relation to a thousand citizens of that community. The Committee was of the view that all castes whose average was less than the State average should be regarded as Backward communities and those whose average was less than 50 per cent of the State average should be regarded as More Backward. The Court took the view that the adoption of the test of the last three High School classes might be a little high, but even if it was not considered high, it was not right to treat communities which were just below the State average as backward. There can be divergence of....
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....o are definitely far behind the advanced classes but ahead of the very backward classes. 55. One may say the same thing about the adoption of the average of the student population in the last three High School Classes of all High Schools in the State in relation to a thousand citizens of that community as the basis for assessing relative Backwardness. Balaji thought it was a little high but surely other views are possible. In fact considering the wide spread of elementary education, one would think the basis should be pushed up higher. Having regard to the availability of elementary schools in rural areas, more and more boys of the backward Classes may become literate But it is a long way from ceasing to be educationally backward. As one goes up class by class it as a notorious fact that there are more 'drop-outs' from the boys of the backward classes than from the boy of the forward classes. The adoption of a lower basis to assess educational backwardness may give a wholly false picture. After all, if one is considering the question of admission to professional colleges or of appointment to posts, the basis possibly should be the average number of students of that commu....
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.... special provision should be less than 50 per cent, and how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case, the court confessed. "In this matter again, we are reluctant to say definitely what would be a proper provision to make." All that the court would finally say was that in the circumstances of the case before them, a reservation of 68 per cent was inconsistent with Article 15(4) of the Constitution. We are not prepared to read Balaji as arbitrarily laying down 50 per cent as the outer limit of reservation. What precisely was decided by Balaji has been summed up by the Court itself at page 471 of the S.C.R. in the following words : We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Article 15(4): and we have also held that the reservation of 68 per cent made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Article 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by A....
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....erved that the decision in the Balaji case said that the caste basis was undoubtedly a relevant, and an important basis in determining the classes of backward Hindus but it should not be made the sole basis. Subba Rao, J., speaking for this Court, explained how the Mysore High Court had misunderstood Balaji and observed : While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the test. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Article 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social b....
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....ce to place in a State. But what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Article 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests. In Rajendran v. State of Madras (1968)IILLJ407SC Ramaswami, J. took care to say, ... if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4).... It is true that in the present cases the list of socially and educationally ba....
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....sp; In its ordinary connotation the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. But for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution. 61. In A. Peeriakatuppan v. State of Tamil Nadu [1971]2SCR430 the Court observed : A caste has always been recognised as a class ... there is no gain saying the fact/that there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life. 62. In State of Andhra Pradesh v. Balarami [1972]3SCR247 the order of the Government of Andhra Pradesh enumerating the socially and educationally backward classes for the purpose of admission into the medical colleges of the State had been struck down by the High Court on the ground that the Governm....
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.... such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average. There is no gain saying the fact that there are numerous castes in the Country, which are socially and educationally backward and therefore a suitable provision will have to be made by the Slate as charge in Article 15(4) to safeguard their interest ... the members of an entire caste or community may in the social economic, and educational scale of values, at a given time be backward and may en that account be treated as backward classes, but that is not because they are members of a caste of community but because they form a class. Therefore, it is clear that there may be instances of an entire caste or a community being socially and educationally backward for being considered to be given protection under Article 15(4).... To conclude, though prima facie the list of Backward Classes which is under attack before us may be considered to be on the basis of caste, a closer examination will clearly show that it is only a description of the group following the particular occupations or professions, exhaustively referred to b....
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.... of the population in India was poverty stricken and if poverty was made the sole test for reservation, a resourceless situation might arise. It was said, But if poverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward and if reservations are made only on the ground of economic codsiderations, an untenable situation may arise because even in sectors which are recognised as socially and educationally advanced, there are large pockets of poverty. In this country except for a small percentage of the population, the people are generally poor-some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes he may do it with confidence that they are bound to be poor. Though the two wards, 'Socially' and 'educationally' are used cumulatively or the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced, it is generally also socially advanced because of the reformative effect of education on that class. The words "advanced" and "backward"....
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....gion has its own measurable possibilities for the maintenance of human numbers, standards of living and fixed property. From an economic point of view the classes of citizens are backward when they do not make effective use of resources. When large areas of land maintain a sparse, disorderly and illiterate population whose property is small and negligible the element of social backwardness is observed. When effective territorial specialisation is not possible in the absence of means of communication and technical processes as in the hill and Uttrakhand areas the people are socially backward classes of citizens. Neglected opportunities and people in remote places raise walls of social backwardness of people. Educational backwardness is ascertained with reference to those factors. Where people have traditional apathy for education on account of social and environmental conditions or occupational handicaps, it is an illustration of educational backwardness. The hill and Uttrakhand areas are inaccessible. There is lack of educational institutions and educational aids. People in the hill and Uttrakhand areas illustrate the educationally backward classes of citizens....
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.... based solely on the caste of the citizen, it will perpetuate the vice of caste system. Again, if the classification is based solely on poverty, it will not be logical.... Social backwardness which results from poverty is likely to be magnified by caste considerations. Occupations, place to habitation may also be relevant factors in determining who are socially and educationally backward classes. Social and economics considerations came into operation in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward.... The problem of determining who are socially and educationally backward classes is undoubtedly not simple. Sociological and economic considerations come into play in evolving proper criteria for its determination. This is the function of the State. The Court's jurisdiction is to decide whether the tests applied are valid.... If the classification is based solely on caste of the citizen, it may not be logical. Social backwardness is the result of poverty to a very large extent. Caste and Poverty are both relevant for determining the backward....
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....r achieving equality embodied in Article 16(1). Dealing with the argument that the rule exceeded the permissible limits of the resulting preference shown to Scheduled Castes. Ray, CJ. observed : The High Court was wrong in basing its conclusion that the result of application of the impeached Rule and the orders are excessive and exorbitant namely that out of 51 posts, 34 were given to the members of the Scheduled Castes and Scheduled Tribes. The promotions made in the service as a whole are no where near 50 per cent of the total number of posts. The Scheduled Castes and Scheduled Tribes constitute 10 per cent of the State's population. Their share in the gazetted so vice of the State is said to be 2 per cent 184 out of 8,700. Their share in the non-gazetted appointments is only 7 per cent namely 11,437 out of 1,62,784. It is, therefore, correct that Rule 13AA and the orders are meant to implement not only the direction under Article 335, but also the Directive Principle under Article 46. 69. One other important statement in Ray, CJ. 's judgment is worth noticing. He said, "Scheduled Castes and Scheduled Tribes are not a caste within the ordinary mea....
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.... compete for posts in Government service, and of Articles 46 and 335 embodying the duties of the State to promote the interest of the economically, educationally and socially backward so as to release them from the clutches of social injustice'. According to Beg, J. the encroachments on the field of Article 16(1) could only be permitted to the extent they were warranted by Article 16(4) and to read broader concept of social justice and equality into Article 16(1) might stultify the provision itself and make Article 16(4) otiose. We must straight away demur. There is no reason whatever to narrow the concept of equality in Article 16(1) and refuse to read into it broader concepts of social justice and equality. In fact, it is necessary to read Article 16(1) so as not to come into any conflict with Arts, 46 and 335. A constitutional document must be read as to synthesise its provisions and avoid disharmony. To say that equality also means that unequals cannot be treated equally is merely to say what is self-evident and common place. Article 14 implies it and we do not see why it is not implied in Article 16(1) also. True, on a first glance, Article 16(4) appears to save the power ....
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....e march of time and measures of better education and more opportunities of employment but wish to wear the 'weaker section' label as a means to score over their near-equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme, and this solution is calculatedly hidden from view by the higher 'backward' groups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, will alone tell the whole truth and a constant process of objective re-evaluation of a progress registered by the 'underdog' categories is essential lest a once deserving 'reservation' should be degraded into "reverse discrimination'. One cannot quarrel with the statement that social science research and not judicial impressionism should form the basis of examination, by Courts, of the sensitive question of reservation for backward classes. Earlier we mentioned how the assumption that efficiency will be impair....
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....the cause of their brethren. There is also the historical truth that oppressed persons who improve their lot, in an effort to forget an unhappy past, often, rush to join the elite and imitate their ways, habits and thoughts. In the process they tend to forget their less fortunate brethren. 73. Fazal Ali, J. expressed his satisfaction that the classification made by the Government by Rule 13(AA) was fully justified by Article 16 of the Constitution. He held that Article 16(4) was not to be read in isolation or as an exception to Article 16(1), but was to be read as part and parcel of Article 16(1) and (2). Dealing with the question of the so-called excessive reservation, he emphatically observed, This means that the reservation should be within the permissible limits and should not be a cloak to till all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time Clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since Clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in exc....
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....urt. One of the arguments vigorously advanced was the usual plea that efficiency would suffer. Krishna Iyer, J. meeting the argument observed : The sting of the argument against reservation is that it promotes inefficiency in administration by choosing sub-standards candidates in preference to those with better mettle. Competitive skill is more relevant in higher posts, especially those where selection is made by competitive examinations. Lesser classes of posts, where promotion is secured mechanically by virtue of seniority except where the candidate is unfit, do not require a high degree of skill as in the case of selection posts. (1968)IILLJ407SC . It is obvious that as between selection and non-selection posts the role of merit is functionally more relevant in the former than in the latter. And if in Rangachari reservation has been held valid in the case of selection posts, such reservation in non-selection posts is an afortiori case. If, in selecting top officers you may reserve posts for SC/ST with lesser merit, how can you rationally argue that for the posts of peons or lower division clerks reservation will spell calamity? The part that efficiency play....
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....class of citizens to when egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). It is illustrative of what the State must do to wipe out the distinction between egalite do droit and egalite de fait, It recognises that the right to equality of opportunity includes the right of the under-privileged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality of opportunity must be such as to yield 'Equality of Results' and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable. John Rawls in 'A Theory of Justice' demands the priority of equality in a distributive sense and the setting up of the Social System "so that no one gains or loses from his arbitrary place in the distribution of natural assets or his own initial position in society without giving or receiving compensatory advantages in return." His basic principle of social justice is: "All social primary goods-liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an un....
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....ivorce, the custom of the several so called socially inferior classes or communities permitted re-marriage of widows and divorce. The divorce was not by decree of a Court of Law but was granted by a Caste Panchayat. The Caste-Panchayat divorce was impermissible and remarriage of widows was also impermissible among the socially superior classes who used to look down upon these customs as primitive. The so-called inferior classes did not and do not have recourse either to Purohits to perform marriages or the Courts to dissolve them. 78. Dress habits also throw light, while it is difficult to imagine, persons belonging to upper caste or occupational groups going about their daily work bare-lacked it is not an uncommon right to see persons belonging to lower caste or occupational groups so going about, Work habits also given an indication. Women belonging to higher social groups would not generally care to serve in other people's homes or fields. Again children of lower social groups take to domestic and field work quite early in their lives. There are certainly good economic reasons for all these factors. As we said economic situation and social situation often reflect each oth....
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....anded as socially backward. On the other hand, there are several castes or other social groups who have only to be named to be immediately identified as socially and economically backward classes, identified as socially backward classes. Again illustrating from rural Andhra Pradesh, one can easily identify caste groups, such as, Kommaras (who traditionally carry on the occupation of black smiths), Kummaris (who traditionally carry on the occupation of potters), Vadderas (who traditionally carry on the occupation of Stone breaking), Mangalis (who traditionally carry on the occupation of Barbers) and Besthas (who traditionally carry on the occupation of Fisher-folk), etc. as backward classes by the mere mention of their castes. True, a few members of those caste or social groups may have progressed far enough and forged ahead so as to compare favourably with the leading forward classes economically, socially and educationally. In such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it. But one is entitled to ask what is to happen to the poorer sections of the forward classes'? The State will h....
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.... there be any misunderstanding, judicial review will not stand excluded. A.P. Sen, J. 81. In view of the importance of the question involved, would like to add a few words of my own, 82. The real question raised is not of excessive reservation for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes under Article 15(4) or for reservation of appointments or posts in favour of any backward classes of citizens under Article 16(4) which, in the opinion of the State, is not adequately represented in the services under the State, but the question is as to the identification of the socially and educationally backward classes of citizens for whose advancement the State may make special provisions under Article 15(4) like those for the Scheduled Castes and Scheduled Tribes. Conceptually, the making of special provisions for the advancement of backward classes of citizens under Article 15(4) and the system of reservation of appointments or posts as envisaged by Article 16(4) as guaranteed in the Constitution, is a national commitment and a historical need to eradicate age-old social disparities in our country. Bu....
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....special provisions under Article 15(4) or for reservations of posts and appointments under Article 16(4) should be poverty, and caste or a sub-caste or a group should be used only for purposes of identification of persons comparable to Scheduled Castes or Scheduled Tribes, till such members of backward classes attain a state of enlightment and there is eradication of poverty amongst them and they become equal partners in a new social order in our national life. 85. In this context, I must point out that the adequacy or otherwise of representation of the backward classes in the services has to be determined with reference to the percentage of that class in the population and the total strength of the service as a whole. The representation does not have to exactly correspond to the percentage of that class in the population; it just to be adequate. Moreover, in the case of services the extent of representation has to be considered by taking into account the number of members of that class in the service, whether they are holding reserved or unreserved posts. I cannot overemphasize the need for a rational examination of the whole question of reservation in the light of the observat....
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....ated several times before this Court and resolved. The frequency and vigour with which these questions are raised is a disturbing indication of the tension and unease in society in regard to the manner in which Article 15(4) and Article 16(4) are operated by the State. The Preamble to our Constitution shows the nation's resolve to secure to all its citizens : Justice-Social, economic and political. The State's objective of bringing about and maintaining social justice must be achieved reasonably having regard to the interests of all. Irrational and unreasonable moves by the State will slowly but surely tear apart the fabric of society. It is primarily the duty and function of the State to inject moderation into the decisions taken under Articles 15(4) and 16(4), because justice lives in the hearts of men and growing sense of injustice and reverse discrimination, fuelled by unwise State action, will destroy, not advance, social justice. If the State contravenes the constitutional mandates of Article 16(1) and Article 335, this Court will of course, have to perform its duty. 87. The extent of reservation under Article 15(4) and Article 16(4) must necessarily vary from Stat....
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....at caution. The issues raised here and the decision rendered on them are bound to have a great Impact on society. They are indeed highly sensitive issues. A superficial approach to the problem has, therefore, to be avoided. The questions have to be tackled with sympathy for persons who are really in need of the benign assistance at the hands of the State and with due regard to the interests of the general public. 92. "India's vast and unparalleled experiment with 'protective' or 'compensatory' discrimination in favour of 'backward sections' of her population betokens a generosity and farsightedness that are rare among nations. The operation of such a preferential principle involves formidable burdens of policy-making and administration in a developing nation. It also places upon the judiciary tasks of great complexity and delicacy. The courts must guard against abuses of the preferential principle while at the same time insuring that the government has sufficient leeway to devise effective use of the broad powers which the Constitution places at its disposal". These are the wise words of Marc Galanter, a member of the faculty of Social Sciences, Unive....
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.... not one individual of one group against another of another group, but the present against the past. In past many privileged persons of mediocre ability had benefited from the indulgence of a system that unquestionably biased in favour of higher castes.' 'Individual aspirations claim the protection of society's rules. But they are not always in harmony and sometimes conflict with the same society's broad interest in achieving certain kinds of racial or group balance.' But rectification of imbalance also sometimes tends towards inequality. 'Societies do not work on absolute rationality, excess of rationality often tends to dehumanise human relations'. The courts are also reminded that for those who are suffering from deprivation of inalienable rights, gradualism can never be a sufficient remedy because as Ralph Buoche observed 'inalienable rights cannot be enjoyed posthmously'. Ours is a 'struggle for status, a struggle to take democracy off parchment and give it life'. 'Social injustice always balances its books with red ink'. Neither the caprice of personal taste nor the protection of vested interests can stand as reasons for res....
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....erpetual denial of equality of opportunity to the weak and the neglected sections of society. This argument is based on the well founded assumption that unequal conditions of cultural life at home cause unequal cultural development of children belonging to different strata of society. The need for social action is necessitated by the environment factors and living conditions of the individuals concerned. The application of the principle of individual merit, unmitigated by other considerations, may quite often G lead to inhuman results. The following illustration given by Bernard Williams establishes the above statement: Suppose that in a certain society great prestige is attached to membership of a warrior class, the duties of which require great physical strength. This class has in the past been recruited from certain wealthy families only ; but egalitarian reforms achieve a change in the rules, by which warriors are recruited from all sections of the society, on the results of a suitable competition. The effect of this, however, is that the wealthy families still provide virtually all the warriors, because the rest of the populage is so under-nourished by re....
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....ackward communities. It is significant that the expression 'backward classes' and 'backward communities' were used almost interchangeably and that the idea contained in Article 335 of the Constitution that any reservation made should not impair efficiency was anticipated more than three decades before the Constitution was enacted. The Committee submitted its report in 1921 containing its opinion that all communities in the State other than Brahmins should be understood as backward communities regarding whom it made certain recommendations. The Government orders issued on the basis of that Report continued to be in force till 1956 i.e. the reorganisation of States which brought together five integrating units the former State of Mysore (including Bellary District), Coorg, four districts of Bombay, certain portions of the State of Hyderabad and the district of South Kanara and the Kollegal Taluk which formerly formed part of the State of Madras. There were different lists of backward communities in the five integrating units and they were allowed to continue for sometime even after the reorganisation of States. In order to bring about uniformity the State Government i....
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....assed an order dated June 9, 1960 regarding admissions to professional and technical institutions reserving 22% of seats for backward classes, 15% for Scheduled Castes and 2% for Scheduled Tribes and the remaining 60% of seats were allowed to be filled upon the basis of merit. The above Government order was challenged before the High Court of Mysore in S.A. Partha and Ors. v. The State of Mysore and Ors. A.I.R. 1961 Mys. 220 The High Court found that the direction contained in the Government order to the effect that if any seat or seats reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes remained unfilled, the same shall be filled by candidates of other backward classes was unconstitutional. It also gave some directions regarding the manner in which the calculation of the quota of reservation should be made. Thereafter the Final Report was submitted by the Nagan Gowda Committee on May 16, 1961' After taking into consideration the recommendations made in the said Report, the State Government issued an order for the purpose of Article 15(4) of the Constitution on July 10, 1961. By that order, the State Government specified 81 classes of people as backwa....
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....considerations of purity based on ritual concepts and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection, it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. if the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian Society which do not recognise castes in the conv....
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....ions is to decide whether the tests applied by the impugned order are valid under Article 15(4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Article 15(4). 96. Dealing with the question of determination of the classes which were educationally backward, Gajendragadkar, J. (as he then was) observed in the same case at pages 463-464 thus : It may be conceded that in determining the educational backwardness of a class of citizens the literacy test supplied by the Census Reports may not be adequate ; but it is doubtful if the test of the average of student population in the last three High School classes is appropriate in determining the educational backwardness. Having regard to the fact that the test is intended to determine who are educationally backward classes, it may not be necessary or proper to put the test as high as has been done by the Committee. But even assuming that the test applied is rational and permissible under Article 15(4), the question still remains as to whethe....
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....nal centers to deserving and qualified candidates of other communities. A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the center have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent ; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. In this particular case, it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68 per cent recommended by the Nagan Gowada Committee would not be in the larger intere....
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....uestion Subba Rao, J. (as he then was), who spoke for the majority, said that the observations of the High Court referred to above were inconsistent with the decision in Balaji's case (supra). After referring to the relevant observations made by this Court in Balaji's case (supra), (Subba) Rao, J. (as he then was) observed at pages 386-387 thus: Two principles stand out prominently from the said observations, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness ; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf, The observations extracted in the judgment of the High Court appear to be in conflict with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made b....
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....ion of the Constitution expressed in the aforesaid Articles. It helps the really backward classes instead or promoting the interests of individuals or groups who, though they belong to a particular caste a majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an effective minority may be socially and educationally far more advanced than another small-sub-caste the total number of which is far less then the said minority. If we interpret the expression "classes" as "castes" the object of the Constitution will be frustrated and the people who do not deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will not arise if, without equating caste with class, caste is taken as only one of the considerations to ascertain whether a person belongs to a backward class or not. On the other hand, if the entire sub-caste, by and large, is backward, it may be included in the Scheduled Castes by foll....
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.... lists- one under Article 15(4) and the other under Article 16(4) of the Constitution was due to the exclusion of certain communities, castes and tribes which were socially and educationally backward but which had adequate representation in the services from the list prepared for the purpose of Article 16(4). The Commission recommended both for purpose of Article 15(4) and Article 16(4) the following percentage of reservations : (i) Backward communities 16 percent (ii) Backward castes 10 percent (iii) Backward tribes 6 percent Total : 32 percent 102. The above reservation of 32 per cent along with 18 per cent reserved for Scheduled Castes and Scheduled Tribes together amounted to 50 per cent of the total seats or posts, as the case may be. The Commission further recommended that if seats/posts remained unfilled in the quota allotted to backward tribes, they should be made over to backward communities and backward castes. Similarly if seats/posts remain unfilled in the quota allotted to backward castes, they should be made over to backward communities and backward tribes. If, however, seats/posts remain unfilled in the quota allotted to any of th....
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....at 40 per cent, the allocation being as follows : (a) Backward Communities 20 (twenty per cent) (b) Backward Castes 10 (ten per cent) (c) Backward Tribes 5 (five per cent) (d) Special Group 5 (five per cent) 104. In the list of Backward communities mentioned in the Government order, the State Government included 'Muslims' thus making a total of 16 backward communities. In the list of backward castes, there were 129 castes including converts into Christianity from Scheduled Castes/Scheduled Tribes up to second generation and 62 Schedules Tribes. The reservation for backward classes was 40 per cent and taken along with 18 per cent for Scheduled Castes and Scheduled Tribes, the total reservation of seats/posts came to 58 per cent leaving only 42 per cent for merit pool. By an order dated May 1, 1979, the reservation for backward communities was reduced to 18 per cent for purposes of Article 16(4). B....
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....nment orders were passed after the judgment of the High Court was pronounced, as stated above. 107. Volumes have been written on the caste system prevailing in India. The caste (varna) has its origin in antiquity. We find reference to it in the vedic lore and in the great epics, in the Smritis and in the Puranas. Purusha Sukta refers to the prevalence of the four Varnas (easte) (See Rig Veda X-90-12). The Lord says in the Bhagavadgita (IV - 13) that the fourfold caste was created by him by the varying distribution of guna and karma. Varna Dharma is extol in many ancient treaties. However laudable the division of society into different castes at the commencement might have been, during the several centuries that followed these castes became petrified making mobility from one caste to another almost impossible. The caste of a person was known by his birth. There arose in course of time a social hierachy built upon the caste system. The stigma of low caste was attached to a person during his whole life with all the attendant disadvantages. Karua, the tragic hero of the Mahabharata though born of a Kshatriya princess had to suffer ignominy during his entire life time as he came to b....
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....nd of environment in which persons of higher castes lived. Many social reformers have tried in the last two centuries to remove the stigma of caste from which people born in lower castes were suffering. Many laws were also passed prohibiting some of the inhuman caste practices. Article 15(2) of the Constitution provides that no citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction, or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment or (b) use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Article 16(2) declared that no person shall be ineligible to hold any civil post on grounds of religion, race, caste or descent. Article 17 abolished 'untouchability' and its practice in any form. Yet the disadvantages from which many of the persons who belonged to various lower castes were suffering are still persisting notwithstanding the fact that some of them have progressed economically, socially and educationally. Pandit Jawa....
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.... 340 of the Constitution. Article 338 and Article 340 are in Part XVI of the Constitution entitled 'special provisions relating to certain classes'. The corresponding part in the Draft Constitution was Part XIV entitled 'special provisions relating to minorities' which contained nine Articles, Articles 292 to 301. Article 292 of the Draft Constitution referred to reservation of seats for minorities in the House of the People, the minorities being, the Muslim community and the Scheduled Castes, certain Scheduled Tribes and the Indian Christian community. Article 293 of the Draft Constitution made special provision regarding the representation of the Anglo-Indian community in the House of the People. Article 294 of the Draft Constitution dealt with reservation of seats for the Muslim community, Scheduled Castes, certain Scheduled Tribes and the Indian Christian community in the State Legislatures. Article 295 of the Draft Constitution authorised the Governor to nominate a representative of the Anglo-Indian community to a State Legislature in certain cases. Article 296 of the Draft Constitution required the Union and the States to appoint members belonging to all minor....
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....ows : Resolved that the Constituent Assembly do proceed to take into consideration the Report dated the 1lth May 1949 on the subject of certain political safeguards for minorities submitted by the Advisory Committee appointed by the resolution of the Assembly on 24 January 1947. Resolved further- (i) that notwithstanding any decisions already taken by the Constituent Assembly in this behalf, the provisions of Part XIV of the Draft Constitution of India be so amended as to give effect to the recommendations of the Advisory Committee contained in the said report ; and (ii) that the following classes in East Punjab, namely, Mazhbis, Ramdasias, Kabirpanthis and Sikligars be included in the list of Scheduled Castes for the Province so that they would be entitled to the benefit of representation in the Legislatures given to the Scheduled Castes. (Vide 'the Framing of India's Constitution by B. Shiva Rao, Vol. IV p. 606). 113. In the Revised Draft Constitution which was introduced in the Constituent Assembly on November 3,....
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...., changed to "Special Provisions Relating to Certain Classes'. 114. It is significant that the expression 'backward classes used in Part XVI of the Constitution and the particular in Article 338(3) is used along with the Scheduled Castes, the Scheduled Tribes and the Anglo-Indian Community. In the original Draft Constitution, the Muslim community and the Indian Christian community also had been referred to in Part XVI. In the course of the debates, the question of the members of the Sikh community was also considered along with these communities. The meaning of backward classes has, therefore, to be deduced having regard to the other words preceding it. It is a rule of statutory construction that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. It is true that this rule which is called as the ejusdem generis rule or the rule noscitur a sociis cannot be carried too far. But it is reasonable to apply that rule where the specific words refer to a distinct genus or category. The Scheduled Castes are those castes, races and tribes or parts of or groups within the castes, ra....
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....or implied in the Union or resulting therefrom; and (4) Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (5) Wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law, freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and (6) Wherein adequate safeguards shall be provided for minorities, Backward and tribal areas, and depressed and other backward classes; and (7) Wherein shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to Justice and the law of civilised nations; and (8) this ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world....
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.... (Vide Constituent Assembly Debates, 1948-1949, Vol. VII, pp. 701-702). 117. The Drafting Committee by qualifying the expression classes of citizens' by 'backward' in Article 16(4) of the Constitution tried to reconcile three different points of view and produced a workable proposition which was acceptable to all, the three points of view being (1) that there should be equality of opportunity for all citizens and that every individual qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he was fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of the principle of equality of opportunity; (2) that if the principle of equality of opportunity was to be operative there ought to be no reservations of any sort for any class or community at all and that all citizens if they are qualified should be placed on the same footing of equality as far as public services were concerned and (3) that though the principle of equality of opportunity was theoretically good there must at the same time be a provision made ....
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....needed to be given adequate protection in order to tide over the difficulties in the way of their progress which were not so much due to poverty but due to their birth in a particular caste. As mentioned elsewhere in the course of this Judgment, the word 'classes' was substituted in the place of the word 'communities' by the Constituent Assembly just at the last moment. The word 'community' meant a caste amongst Hindus or Muslims, or Indian Christians or Anglo-Indians. Part XVI was not enacted for the purpose of alleviating the conditions of poorer classes as such which was taken care of by the provisions of Part IV of the Constitution and in particular by Article 46 and by Article 14, Article 15(1) and Article 16(1) of the Constitution which permitted classification of persons on economic grounds for special treatment in order to ensure equality of opportunity to all person. 119. It is of significance that the views expressed by this Court, however, stood modified by the decisions of this Court in Minor P. Rajendran v. State of Madras and Ors. [1968]2SCR786 State of Andhra Pradesh and Anr. v. P. Sagar. [1968]3SCR595 Triloki Nath and Anr. v. State of Jamm....
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....t effect may be given to Clause (4), it must appear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the Scheduled Castes and Scheduled Tribes, and that the provision made is for their advancement. Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission to higher educational institutions. The criterion for determining the backwardness must not be based solely on religion, race, caste, sex, or place of birth, and the backwardness being social and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer. (emphasis added) 120. In Triloki Nath's case (supra) which was a case in which Article 16(4) came up for consideration, a Constitution Bench of this Court observed at page 105 thus : Article 16 in the first instance by Clause (2) prohibits discrimination on the ground, inter alia, of religion, race, caste, place of birth, residence and permits an exception to b....
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.... his social status lowered as a Brahman. Brahman may be a seller of boots and shoes, and yet his social status is not lowered thereby. Social backwardness, therefore, is not today due to the particular profession of a person, but we cannot escape caste in considering the social backwardness in India 123. In Paragraph 11 of that Report it is stated: It is not wrong to assume that social backwardness has largely contributed to the educational backwardness of a large number of social groups. 124. Finally in Paragraph 13, the Committee concludes with following observations: All this goes to prove that social backwardness is mainly based on racial, tribal, caste and denominationals differences. 125. The learned Judge then proceeded to state at page 444: There is no gainsaying the fact that there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life. Hence we are enable to uphold the contention that impugned reservation is not in accordance with Article 15(4). But all the same the Government should not proce....
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....ission on the basis of whose Report the Government order had been passed had given good reasons in support of its recommendations. Accordingly the Government order was upheld. 128. If we depart from the view that caste or community is an important relevant factor in determining social and educational backwardness for purposes of Article 15(4) and Article 16(4) of the Constitution, several distortions are likely to follow and may take us away from the sole purpose for which those constitutional provisions were enacted. Several factors such as physical disability, poverty, place of habitation, the fact of belonging to a freedom fighter's family, the fact of belonging to the family of a member of the armed forces might each become a sole factor for the purpose of Article 15(4) or Article 16(4) which were not at all intended to be resorted to by the State for the purpose of granting relief in such cases. While relief may be given in such cases under Article 14, Article 15(1) and Article 16(1) by adopting a rational principle of classification, Article 15(4) and Article 16(4) cannot be applied to them. Article 15(4) and Article 16(4) are intended for the benefit of those who belo....
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....ion allowed it. The Division Bench of the Kerala High Court, however, reversed the decision of the learned Single Judge and dismissed the petition. On appeal, this Court while affirming the decision of the Division Bench in the above case on the question of social backwardness observed at pages 199-200 thus : In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of their caste. This shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is not the determining factor of social backwardness. Poverty is relevant in the context of social backwardness. The Commission found that the lower income group constitutes socially and educationally backward classes. The basis of the reservation is not income but social and educational backwardness determined on the basis of relevant criteria. If any classificatio....
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....reas were socially backward because of extreme poverty ; that those areas were backward educationally because the standard of literacy was poor and there was lack of educational facilities and that there was dearth of doctors in the said areas. The geographical, territorial, historical and the economic conditions in the said areas were emphasised to support the classification. In the State of Uttar Pradesh v. Pradip Tandon's case (supra) Court first rejected the plea that party could be a basis of classification for purposes of Article 1(4) in these terms at page 768 : In Balaji's case (supra) the Court said that social backwardness is on the ultimate analysis the result of poverty to a large extent and that the problem of backward classes is in substance the problem of rural India. Extracting these observations the Attorney General contended that poverty is not only relevant but is one of the elements in determining the social backwardness. We are unable to accept the test of poverty as the determining factor o social backwardns. 131. Then it held that reservation for rural areas on the ground of poverty was unconstitutional. In doing so it observe....
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.... and Uttrakhand areas are inaccessible. There is lack of educational institutions and educational aids People in the hill and Uttrakhand areas illustrate the educationally backward classes of citizens because lack of educational facilities keep them stagnant and they have neither meaning and values nor awareness for education. 133. The reading of the above passages shows that there is inherent inconsistency between one part of the decision and the other. The Court could not have arrived at the two divergent conclusions set out above since many of the reasons urged by the State Government were almost identical. This is due to the earlier approach adopted by the Court to the question. If caste had been taken into consideration as a relevant test which could not be ignored in determining the classes entitled to the benefit of Article 15(4) and Article 16(4), there would have been no room for the above inconsistency. 134. Article 14 of the Constitution consists of two parts. It asks the State not to deny to any person equality before law. It also asks the State not to deny the equal protection of the laws. Equality before law connotes absence of any discrimination in law. The con....
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....led Castes and Scheduled Tribes. When the Government found that a large number of candidates belonging to Scheduled Castes and Scheduled Tribes were facing reversion under that Rule, on a representation made on their behalf, it gave exemption to them for a further period of two years by promulgating Rule 13AA. As a result of this Rule, respondent No. 1 in the above case who had passed the special test in 1971 was not promoted but some candidates belonging to Scheduled Castes or Scheduled Tribes who had not passed the tests were promoted. Respondent No. 1 therefore challenged the validity of Rule 13AA before the High Court of Kerala on the ground that it violated Article 16(1) of the Constitution. The High Court struck down the Rule holding that it was outside the scope of Article 16(4) and therefore was violative of Article 16(1) of the Constitution. The State Government questioned in the above case before this Court the correctness of the decision of the High Court. From the facts narrated above, it is obvious that the case did not concern itself with reservation of posts in the higher cadre as such but only involved the classification of employees of Government into two groups-th....
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.... it is equally well established, must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and the differentia must have a rational relation to the object sought to be achieved by the statute in question. It is urged that the same principle should apply when the court is concerned with the equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. In this respect I may observe that this Court has recognised the principle of classification in the context of Clause (1) of Article 16 in matters where appointments are from two different sources, e.g. guards and station masters, promotees and direct recruits, degree holder and diploma holder engineers. [See All India Station Masters and Asstt. Station Masters' Assn. and Ors. v. General Manager, Central Railway and Ors. [1960]2SCR311 S.G. Jaisinghani v. Union of India and Ors. [1967]65ITR34(SC) and State of Jammu & Kashmir v. TrilokiNath Khesa and Ors. (1974)ILLJ121SC The question with which we are concerned, however, is whether we can extend the above principle of classification so as t....
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....heduled Tribes equality of opportunity in the matter of employment, 1 see no reason why that is not permissible under Article 16(1) as that alone might put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Whether there is equality of opportunity can be gauged only by the equality attained in the result. Formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. Equality of result is the test of equality of opportunity. 138. Beg, J. (as he then was) agreed with the view of Khanna, J. that the principle of classification could not be extended to cases of this nature but upheld the Rule as squarely falling within the scope of Article 16(4) itself. He observed at page 959 : Strictly speaking, the view adopted by my learned brother Khanna, that the ambit of the special protection of "equality of opportunity in matters relating to public service", which can be made available to members of backward classes of citizens, is exhausted by Art....
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.... will not fall outside it. Even if this was a tenable view, I would, for all the reasons given here, prefer to find the justification, if this is possible, in the express provisions of Article 16(4) because this is where such a justification should really lie. 140. Krishna Iyer, J. after recording the statement of the Advocate General for Kerala that the Rule could not be sustained under Article 16(4) upheld it under Article 14 and Article 16(1) as it related to members belonging to the Scheduled Castes and Scheduled Tribes. Perhaps he would have struck down the Rule if the benefit of the Rule had been extended to other backward classes as can be seen from the following passage occurring at page 981 : If Article 14 admits of reasonable classification, so does Article 16(1) and this Court has held so. In the present case, the economic advancement and promotion of the claims of the grossly under-represented and pathetically neglected classes, otherwise described as Scheduled Castes and Scheduled Tribes, consistently with the maintenance of administrative efficiency, is the object, constitutionally sanctioned by Articles 46 and 335 and reasonably accommodated ....
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....aintenance of efficiency of administration. By giving the special concessions to the promotees this mandate is sought to be obeyed by the Government. Mr. T.S. Krishnamoorthy Iyer, counsel for the respondent No. 1 submitted that the mandate given in Article 335 is violated because by granting exemption to the members of the scheduled castes and tribes the standard of efficiency of the services would be impaired. We are, however, unable to agree with the argument. Both the respondent No. 1 and the promotees were members of the same service and had been working as Lower Division Clerks for a pretty long time. The promotees who were members of the scheduled castes and tribes are admittedly senior to respondent No. 1 and have gained more experience. Further the rule does not grant complete exemption to the promotees from passing the test; it only provides for grant of extension of time to enable them to clear the test. In these circumstances it cannot be held that the State's action in incorporating Rule 13-AA in any way violates the mandate contained in Article 335. In these circumstances, therefore, I am clearly satisfied that the concession given in Rule 13-AA amounts to a reason....
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....or Article 16(1). According to Krishna Iyer, J. preferential treatment as was done in this case on the basis of classification ordinarily could be given under Article 16(1) to the Scheduled Castes and Scheduled Tribes only. Other backward classes could not, except in exceptionally rare cases be extended the same benefit and their only hope was Article 16(4) of the Constitution. 145. Now reverting to the power of the Government to make reservations under Article 15(4) and Article 16(4) of the Constitution, we may state thus: The determination of the question whether the members belonging to a caste or a group or a community are backward for the purpose of Article 15(4) and Article 16(4) of the Constitution is no doubt left to the Government. But it is not open to the Government to call any caste or group or community as backward according to its sweet will and pleasure and extend the benefits that may be granted under those provisions to such caste or group or community. The exercise of uncontrolled power by the Government in this regard may lead to political favouritism leading to denial of the just requirements of classes which are truly backward. The power of the Government to....
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.... providing adequate safeguards for minorities, backward and tribal areas and depressed and other backward classes and also with the provisions of Article 338 and Article 340 of the Constitution. Unless the above restriction is imposed on the Government, it would become possible for the Government to call any caste or group or community which constitutes a powerful political lobby in the State as backward even though in fact it may be an advanced caste or group or community but just below some other forward community. There is another important reason why such advanced castes or groups or communities should not be included in the list of backward classes and that is that if castes or groups and communities which are fairly well advanced and castes and groups and communities which are really backward being at the rock-bottom level are classified together as backward classes, the benefit of reservation would invariably be eaten up by the more advanced sections and the really deserving sections would practically go without any benefit as more number of children of the more advanced castes or groups or communities amongst them would have scored higher marks than the children of more bac....
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....e is one other basis on which a classification made for purposes of Article 15(4) or Article 16(4) of the Constitution has received the approval of this Court in Chitralekha's case (supra). In that case the Court was concerned with a list of backward classes prepared on the basis of economic condition and occupation. According to that Government order, persons whose family income was Rs. 1,200 per annum or less and who were engaged in occupations such as agriculture, petty business, inferior services, crafts or other occupations involving manual labour were treated as belonging to backward classes. The petitioner who had filed the petition in the High Court did not challenge the validity of the said classification. But on a submission made on behalf of the State Government, the Court expressed its general approval to the method of classification. Even in the case before us now, there is a reservation of 15 per cent of seats of posts in favour of members falling under a classification styled as 'special group' which is based on similar occupation-cum-income considerations. Even here no serious objection is taken by any party to the said classification treating persons wh....
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....at taking into consideration the entire Government service, there was no excessive concession shown to the employees belonging to the Scheduled Castes and Scheduled Tribes. Beg, J. (as he then was) was also of the same view. Fazal Ali, J. observed at page 1005 thus : This means that the reservation should be within the permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time Clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since Clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exc....