indra Sawhney and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:

constitution - interlocutory order - constitution of india - government issued notification providing reservation to economically backward persons - issued remain for consideration before major political parties - government tried for consensus among major political parties - notification adjourned till sitting of major political parties - order sought to be enforced challenged in court - court adjourned matter till clear stand of government for implementation of notification. - indian penal code, 1890.sections 302 & 376: [dr.arijit pasayat & asok kumar ganguly,jj] death sentence -rarest of rare case - case based on circumstantial evidence held, mitigating circumstances and aggravating circumstances have to be balanced. difference of opinion as to case coming within parameters of rarest of rare case - matter directed to be placed before chief justice of india for necessary orders. sections 302 & 376: death sentence-rarest of rare case [per ganguly, j]imposition of death sentence by considering one of the circumstances which high court finds plausible is in defiance of any reasoning which brings a case within category of rarest of rare cases. section 302: death sentence- held,..........the meaning of the words is given as follows:class(1) a number or body of persons with common characteristics: the educated class; (2) social rank; castecaste(1) one of the hereditary classes into which hindu society is divided in india (2) the principle of practice of such division or the position it confers; (3) the division of society on artificial grounds; a social class53. according to webster's encyclopedic unabridged dictionary of the english language, meaning of the words 'class' and 'caste' is as follows:class(1) a number of persons or things regarded as forming a group by reason of common attributes, characteristics, qualities, or traits, kind, sort (2) any division of persons or things according to rank or grade.... (9) social, a social stratum sharing basic, economic, political or cultural characteristics and having the same social position ...(10) the system of dividing society; caste....caste(1) social, an endogamous and hereditary social group limited to persons of the same rank, occupation, economic position etc. and having mores distinguishing it from other such groups, (2) any rigid system of social distinctions (2) hinduism, any of the four social divisions,.....

Judgment:

ORDER

1. 'Equality of status and of opportunity...' the rubric chiselled in the luminous preamble of our vibrating and pulsating Constitution radiates one of the avowed objectives in our Sovereign, Socialist and Secular Democratic Republic. In every free country which has adopted a system of governance through democratic principles, the people have their fundamental inalienable rights and enjoy the recognition of inherent dignity and of equality analogous to the rights proclaimed in the 'Bill of Rights' in U.S.A., the 'Rights of Man' in the French Constitution of 1971 and 'Declaration of Human Rights' etc. Our Constitution is unquestionably unique in its character and assimilation having its notable aspirations contained in 'Fundamental Rights' (in part III) through which the illumination of Constitutional rights comes to us not through an artless window glass but refracted with the enhanced intensity and beauty by prismatic interpretation of the Constitutional provisions dealing with equal distribution of justice in the social, political and economic spheres.

2. Though forty-five years from the commencement of the Indian independence after the end of British paramount and forty-two years from the advent of our Constitution have marched on, the tormenting enigma that often nags the people of India is whether the principle of 'equality of status and of opportunity' to be equally provided to all the citizens of our country from cradle to grave is satisfactorily consummated and whether the clarion of 'equality of opportunity in matters of public employment' enshrined in Article 16(4) of the Constitution of India has been called into action? With a broken heart one has to answer these questions in the negative.

3. The founding fathers of our Constitution have designedly couched Articles 14, 15 and 16 in comprehensive phraseology so that the frail and emaciated section of the people living in poverty, rearing in obscurity, possessing no wealth or influence, having no education, much less higher education and suffering from social repression and oppression should not be denied of equality before the law and equal protection of the laws and equal opportunity in the matters of public employment or subjected to any prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

4. To achieve the above objectives, the Government have enacted innumerable social welfare legislations and geared up social reformative measures for uplifting the social and economic development of the disadvantaged section of people. True, a rapid societal transformation and profusion of other progressive changes are taking place, yet a major section of the people living below the poverty line and suffering from social ostracism still stand far behind and lack in every respect to keep pace with the advanced section of the people. The undignified social status and sub human living conditions leave an indelible impression that their forlorn hopes for equality in every sphere of life are only a myth rather than a reality. It is verily believed - rightly too - that the one and only peerless way and indeed a most important and promising way to achieve the equal status and equal opportunity is only by means of constitutional justice so that all the citizens of this country irrespective of their religion, race, caste, sex, place of birth or any of them may achieve the goal of an egalitarian society.

5. This Court has laid down a series of landmark judgments in relation to social justice by interpreting the constitutional provisions upholding the cherished values of the Constitution and thereby often has shaped the course of our national life. Notwithstanding a catena of expository decisions with interpretive semantics, the naked truth is that no streak of light or no ray of hope of attaining the equality of status and equality of opportunity is visible.

6. Confining to the issue involved in this case as regards the equal opportunity in the matters of public employment, I venture to articulate without any reservation, even on the possibility of any refutation that it is highly deplorable and heart-rending to note that the constitutional provision, namely, Clause (4) of Article 16 proclaiming a 'Fundamental Right' enacted about 42 years ago for providing equality of opportunity in matters of public employment to people belonging to any backward class has still not been given effect to in services under the Union of India and many more States. A number of Backward Classes Commissions have been appointed in some of the States, the recommendations of which have been repeatedly subjected to judicial scrutiny. Though the President of India appointed the second Backward Classes Commission under the chairmanship of Shri B.P. Mandal as far back as 1st January, 1979 and the Report was submitted in December, 1980, no effective steps were taken for its implementation till the issuance of the two impugned OMs. Having regard to this appalling situation and the pathetic condition of the backward classes, for the first time the Union of India has issued the Office Memorandum (hereinafter called the 'O.M.') in August 1991 and thereafter an amended O.M. in September 1991 on the basis of the recommendations of the Mandal Commission.

7. Immediately after the announcement of the acceptance of the Report of the Mandal Commission, as pointed out in Writ Petition No. 930/ 90 and the Annexures I & II enclosed thereto, there were unabated pro as well as anti reservation agitations and violent societal disturbances virtually paralysing the normal life. It was unfortunate and painful to note that some youths who are intransigent to recognise the doctrine of equality in matters of public employment and who under the mistaken impression that 'wrinkles and gray hairs' could not do any thing in this matter, actively participated in the agitation. Similarly, another section of people suffering from a fear psychosis that the Mandal recommendations may not at all be implemented entered the fray of the agitation. Thus, both the pro and anti-reservation on being detonated and inflamed by the ruffled feelings that their future in public employment is bleak raised a number of gnawing doubts which in turn sensationalized the issue. Their pent up fury led to an orgy of violence resulting in loss of innocent life and damaged the public properties. It is heart-rending that some youths - particularly students - in their prime of life went to the extent of even self-immolating themselves. No denying the fact that the horrible, spine - chilling and jarring piece of information that some youths whose feelings ran high had put an end to their lives in tragic and pathetic manner had really caused a tremor in Indian society. My heart bleeds for them.

8. In fact, a three-Judges Bench of this Court comprised of Ranganath Misra, CJ and K.N. Singh and M.H. Kania, JJ (as the learned Chief Justices then were) taking note of the widespread violence, by their order dated 21st September 1990 made the following appeal to the general public and particularly the student community:

After we made order on 11th September, 1990, we had appealed to counsel and those who were in the Court room to take note of the fact that the dispute has now come to the apex court and it is necessary that parties and the people who were agitated over this question should maintain a disciplined posture and create an atmosphere where the question can be dispassionately decided by this Court.... There is no justification to be panicky over any situation and if any one's rights are prejudiced in any manner, certainly relief would be available at the appropriate stage and nothing can happen in between which would deter this Court from exercising its power in an effective manner.

9. Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to the issues under controversy by the mere reflexes of the opinion of any section of the people or by the turbulence created in the society or by the emotions of the day. Because nothing inflicts a deeper wound on our Constitution than in interpreting it running berserk regardless of human rights and dignity.

10. We are very much alive to the fact that the issues with which we are now facing are hypersensitive, highly explosive and extremely delicate. Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner.

11. Part-Ill dealing with 'Fundamental Rights' and Part-IV dealing with 'Directive Principles of State Policy' which represent the core of the Indian Constitutional philosophy envisage the methodology for removal of historic injustice and inequalities -either inherited or artificially created - and social and economic disparity and ultimately for achieving an egalitarian society in terms of the basic structure of our Constitution as spelt out by the preamble.

12. Though all men and women created by the Almighty , whether orthodox or heterodox; whether theist or atheist; whether born in the highest class or lowest class; whether belong to 'A' religion or 'B' religion are biologically same, having same purity of blood. In a Hindu Society they are divided into a number of distinct sections and sub sections known as castes and sub castes. The moment a child comes out of the mother's womb in a Hindu family and takes its first breath and even before its umbilical cord is cut off, the innocent child is branded, stigmatized and put in a separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance.

13. The concept of inequality is unknown in the kingdom of God who creates all beings equal, but the 'created' of the creator has created the artificial inequality in the name of casteism with selfish motive and vested interest.

14. Swami Vivekananda in one of his letters addressed to his* disciples in Madras dated 24.1.1894 has stated thus:

Caste or no caste, creed or no creed, .... or class, or caste, or nation, or institution which bars the power of free thought and action of an individual - even so long as that power does not injure others - is devilish and must go down.

(Vide 'The Complete Works of Swami Vivekananda, Vol. V page 29')

15. A Biblical verse in New Testament says 'He denied none that come unto Him, black and white''.

16. Sura 10 Verse No. 44 of Holy Quran reads:

Verily God will not deal unjustly with man in ought; it is man that wrongs his own soul.

17. The Hindus who form the majority, in our country, are divided into 4 Varnas - namely, Brahmins, Kshatriyas, Vaishyas (who are all twice born) and lastly Shudras which Varnas are having a four tier demarcated hierarchical caste system based on religious tenets, believed to be of divine origin or divinely ordained, otherwise called the Hindu Varna sharma Dharma, Beyond the 4 Varnas Hinduism recognises a community, by name Panchama (untouchables) though Shudras are recognised as being the lowest rung of the hierarchical race. This system not only creates extreme forms of caste and gender prejudices, injustices, inequalities but also divides the society into privileged and disabled, revered and despised and so on. The perpetuation of casteism, in the words of Swami Vivekananda 'continues social tyranny of ages'. The caste system has been religiously preserved in many ways including by the judicial verdicts, pronounced according to the traditional Hindu Law.

18. On account of the caste system and the consequent inequalities prevailing in Hinduism between person to person on the basis of Varna sharma Dharma new religions such as Buddhism and Jainism came into existence on the soil of this land. Many humanistic thinkers and farseeing revolutionary leaders who stood foursquare by the down- trodden section of the Backward Classes aroused the consciousness of the backward class to fight for justice and join the wider struggle for social equality and propagated various reforms. It was their campaign of waging an unending war against social injustice which created a new awareness. The sustained and strenuous efforts of those leaders in that pursuit have been responsible for bringing many new social reforms.

19. Recognizing and recalling the self-less and dedicated social service carried on by those great leaders from their birth to the last breath; the then Prime Minister while making his clarificatory statement regarding the implementation of the Mandal Commission's Report in the Rajya Sabha on the 9th August 1990 paid the tributes in the following words:

In fact this is the realisation of the dream of BHARAT RATNA Dr. B.R. Ambedkar, of the great PERIYAR Ramaswamy and Dr. Ram Manohar Lohia.

20. Harkingback, it is for the first time that the controversial issue as regards the equality of opportunity in matters of public employment as contemplated under Article 16(4) has come up for deliberation before a nine-Judges Bench, on being referred to by a five- Judges Bench.

21. There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment.

22. This Court which stands as a sentinel on the quiver over the rights of people of this country has to interpret the Constitution in its true spirit with insight into social values and suppleness of the adoption to the changing social needs upholding the basic structure of the Constitution for securing social justice, economic justice and political justice as well as equality of status and equality of opportunity.

23. The very blood and soul of our Constitutional scheme are to achieve the objectives of our Constitution as contained in the preamble which is part of our Constitution as declared by this Court in Kesvananda Bharti v. Kerala : [1973]3SCR1 . So it is incumbent to lift the veil and see the notable aspirations of the Constitution.

24. No one can be permitted to invoke the Constitution either as a sword for an offence or as a shield for anticipatory defence, in the sense that no one under the guise of interpreting the Constitution can cause irreversible injustice and irredeemable inequalities to any section of the people or can protect those unethically claiming unquestionable dynastic monopoly over the Constitutional benefits.

25. Therefore, the Judges who are entrusted with the task of fostering an advanced social policy in terms of the Constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect the society.

26. This Summit Court has not only to interpret the Constitution but also sometimes to articulate the Constitutional norms, serving as a publicist for reforms in the areas of the most pressing needs and directing the executive to take the needed actions. Mere verbal gymnastics or empty slogans and sermons honoured more often in rhetoric than practice are of no use.

27. It may be a journey of thousand miles in achieving the equality of status and of opportunity, yet it must begin with a single step. So let the socially backward people take their first step in that endeavour and march on and on.

28. When new societal conditions and factual situations demand the Judges to speak they, without professing the tradition of judicial lock-jaw, must speak out. So I speak.

29. For providing reservations for backward class of citizens, Scheduled Castes and Scheduled Tribes in the public educational institutions and for providing equal opportunity in the matters of public employment, some States have appointed Commissions on Backward Classes. The Central Government has also appointed two Commissions under Article 340(1) of the Constitution of India for identifying the backward class of citizens as contemplated under Article 16(4) for the purpose of making reservation of appointments or posts in the Services under Union of India. The list of Commissions appointed by the various States and the Central Government is given as under:

COMMISSIONS ON BACKWARD CLASSES 1918-1990 Andhra Pradesh Manohar Pershad Committee (1968-69) Ananta Raman Commission (1970) Muralidhara Rao Commission (1982) Bihar Mungeri Lal Commission (1971-76) Gujarat A.R. Bakshi Commission (1972-76) Justice C.V. Rane Commission (1981-83) Justice R.C. Mankad Commission (1987) Haryana Gurnam Singh Commission (1990) Jammu and Kashmir Justice Ganjendragadkar Commission (1967-68) Justice J.N. Wazir Commission (1969) Justice Adarsh Anand Commission (1976-77) Karnataka Justice L.C. Miller Committee (1918-1920; Mysore) Naganna Gowda Commission (1960-61) L.G. Havnur Commission (1972-75) T. Venkataswamy Commission (1983-86) Justice Chinnappa Reddy Commission (1989-90) Kerala Justice C.D. Nokes Committee (1935; Travancore-Cochin) V.K. Vishvanathan Commission (1961-63) G. Kumar Pillai Commission (1964-66) N.P. Damodaran Commission (1967-70) Maharashtra O.H.B. State Committee (1928-30; Bombay Presidency) B.D. Deshmukh Committee (1961-64) Punjab Brish Ban Committee (1965-66) Tamil Nadu A.N. Sattanathan Commission (1969-70) J.M. Ambasankar Commission (1982-86) Uttar Pradesh Chhedi Lal Sathi Commission (1975-77) All India Kaka Kalelkar Commission (1953-55) B.P. Mandal Commission (1979-80)

Note: 1. Where two dates are mentioned they refer to year of appointment and year of submission. Where only one is mentioned it refers to year of submission which is also the year of appointment in some cases.

2. The three commissions of the colonial period mentioned here had an ambit wider than those groups that later came to be known as Backward Classes.

Second Backward Classes Commission (popularly known as Mandal Commission)

30. By a Presidential Order under Article 340 of the Constitution of India, the first Backward Class Commission known as Kaka Kalelkar's Commission was set up on January 29, 1953 and it submitted its report on March 30, ,1955 listing out 2399 castes as socially and educationally backward on the basis of criteria evolved by it, but the Central Government did not accept that report and shelved it in the cold storage.

31. It was about twenty-four years after the First Backward Classes Commission submitted its Report in 1955 that the President of India pursuant to the resolution of the Parliament appointed the second Backward Classes Commission on 1st January 1979 under the Chairmanship of Shri B.P. Mandal to investigate the conditions of Socially and Educationally Backward Classes (for short 'SEBCs') within the territory of India. One of the terms of reference of the Commission was to determine the criteria for defining the SEBCs. The Commission commenced its functioning on 21st March 1979 and completed its work on 12th December 1980, during the course of which it made an extensive tour throughout the length and breadth of India in order to collect the requisite data for its final report. The Commission submitted its report with a minute of dissent of one of its members, Shri L.R. Naik on 31st December 1980. The Commission appears to have identified as many as 3743 castes as SEBCs and made its recommendations under Chapter XIII of Volume I of its report (vide paras 13.1 to 13.39) and finally suggested 'regarding the period of operation of Commission's recommendations, the entire scheme should be reviewed after twenty years. (Vide para 13.40)

32. The entire Report comprises of fourteen Chapters of which Chapter IV deals with 'Social Backwardness and Caste', Chapter XI deals with 'Socio-Educational Field Survey and Criteria of Backwardness', Chapter XII deals with 'Identification of OBCs' and Chapter XIII gives the 'Recommendations'. After a thorough survey of the population, the Commission has arrived at the percentage of OBCs as follows:

12.22 From the foregoing it will be seen that excluding Scheduled Castes and Scheduled Tribes, other Backward Classes constitute nearly 52% of the Indian population. Percentage of Distribution of Indian Population by Caste and Religious Groups -------------------------------------------------------------------------- S.No. Group Name Percentage of the total Population -------------------------------------------------------------------------- I. Scheduled Castes and Scheduled Tribes A-1 Scheduled Castes 15.05 A-2 Scheduled Tribes 7.51 Total of 'A' 22.56 II. Non-Hindu Communities, Religious Groups, etc. B-1 Muslims (other than STs) 11.19 (0.2)* B-2 Christians (other than STs) 2.16 (0.44)* B-3 Sikhs (other than SCs & STs) 1.67 (0.22)* B-4 Budhists (other than STs) 0.67 (0.03)* B-5 Jains 0.47 Total of 'B' 16.16 III. Forward Hindu Castes & Communities C-1 Brahmins (including Bhumihars)5.52 C-2 Rajputs 3.90 C-3 Marathas 2.21 C-4 Jats 1.00 C-5 Vaishyas-Bania etc. 1.88 C-6 Kayasthas 1.07 C-7 Other forward Hindu castes/groups 2.00 Total of 'C' 17.58 Total of 'A', 'B' & 'C' 56.30 IV. Backward Hindu Castes & Communities D. Remaining Hindu castes/groups which come in the category of 'Other Backward Classes' 43.70@ V. Backward Non-Hindu Communities E. 52% of religious groups under Section B may also be treated as OBCs 8.40 F. The approximate derived population of Other Backward Classes including non-Hindu Communities52% (Aggregate of D & E, rounded) @ This is a derived figure * Figures in brackets give the population of S.C. & S.T.among these non- Hindu Communities. --------------------------------------------------------------------------

33. On the basis of the Commission's Report - popularly known as Mandal Commission's Report - (for short 'the Report'), two Office Memoranda - one dated 13.8.1990 and the other amended one dated 25.9.1991 were issued by the Government of India. We are reproducing those Memoranda hereunder for proper understanding and appreciation of the significance of these two OMs and the distinctions appearing between them:

No. 36012/31/90-Estt (SCT)

Government of India

Ministry of Personnel, Public Grievances & Pensions

(Deptt. of Personnel & Training)

OFFICE MEMORANDUM

New Delhi, the 13th August, 1990

Subject: Recommendation of the Second Backward Classes Commission (Mandal Report) - Reservation for Socially and Educationally Backward Classes in services under the Government of India.

In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The second Backward Classes Commission called/the Mandal Commission was established by the then Government with this purpose in view, which submitted its report to the Government of India on 31.12.1980.

2. Government have carefully considered the report and the recommendations of the Commission in the present context responding the benefits to be extended to the socially and educationally backward classes as opined by the Commission and are of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:

(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.

(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately.

(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments' lists. A list of such castes/communities is being issued separately.

(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.

Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of Public Enterprises and Ministry of Finance respectively.

sd/-

(Smt. Krishna Singh)

Joint Secretary to the Govt. of India

Amended Memorandum:

No. 36012/31/90-Estt (SCT)

Government of India

Ministry of Personnel, Public Grievances & Pensions

(Deptt. of Personnel & Training)

OFFICE MEMORANDUM

New Delhi, the 25th September, 1991.

Subject: Recommendation of the Second Backward Classes Commission (Mandal Report) - Reservation for Socially and Educationally Backward Classes in service under the Government of India.

The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation, Government have decided to amend the said Memorandum with immediate effect as follows:

2. (i) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates.

(ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically sections of the people who are not covered by any of the existing schemes of reservation.

(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.

3. The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above.

sd/-

(A.K. HARIT)

DEPUTY SECRETARY TO THE GOVT. OF INDIA

34. The expression deployed in both the OMs, 'Socially and Educationally Backward Classes' is on the strength of the Report of the Commission, though no such expression is used in Article 16(4) whereunder the reservation of appointments or posts in favour of any backward class of citizens is to be made. This expression is used as an explanatory one to the words 'backward class' occurring in Article 16(4). Articles 16(4) and 340(1) were embodied in the Constitution even at the initial stage; but Article 15(4) containing the same expression as in Article 340(1) was subsequently added by the Constitution (First Amendment) Act of 1951 to over-ride the decision of this Court in State of Madras v. Smt. Champakam Dorairajan : [1951]2SCR525 .

Legislative History of Article 15(4) of the Constitution

35. A legislative historical event that warranted the introduction of Clause 4 to Article 15 may be briefly retraced.

36. The Government of Tamil Nadu issued a Communal G.O. in 1927 making compartmental reservation of posts for various communities. Subsequently the G.O. was revised. In 1950 one Smt. Champakam Dorairajan who intended to join the Medical College, on enquiries came to know that in respect of admissions into the Government Medical College the authorities were enforcing and observing an order of the Government, namely, notification G.O. No. 1254 Education dated 17.5.1948 commonly known as Communal G.O. which restricted the number of seats in Government Colleges for certain castes. It appeared that the proportion fixed in the old Communal G.O. had been adhered to even after commencement of the Constitution on January 26, 1950. She filed a Writ Petition on 7th June 1950 under Article 226 of the Constitution for issuance of a writ of mandamus restraining the State of Madras from enforcing the said Communal G.O. on the ground that the G.O. was sought or purported to be regulated in such a manner as to infringe the violation of the fundamental rights guaranteed under Articles 15(1) and 29(2). Similarly one Srinivasan who had applied for admission into the Government Engineering College at Guindy also filed a Writ Petition praying for a writ of mandamus for the same relief as in Chcunpakam Dorairajan. A full bench of the Madras High Court heard both the Writ Petitions and allowed them (vide Smt. Champakam Dorairajan and Anr. v. State of Madras : AIR1951Mad120 . In this connection it may be mentioned that while the Writ Petition was pending before the High Court, another revised G.O. No. 2208 dated June 16, 1950 substantially reproducing the communal proportion fixed in the old Communal G.O. came into being. The State on being aggrieved by the judgment of the Madras High Court preferred an appeal before this Court in State of Madras v. Smt. Champakam Dorairajan : [1951]2SCR525 . A seven Judges Bench dismissed the appeal holding that 'the Communal G.O. being inconsistent with the provisions of Article 29(2) in Part III of the Constitution is void under Article 13.' This judgment necessitated the introduction of a Bill called Constitution (First Amendment) Bill for over-riding the decision of this Court in Champakam's case (supra).

37. During the Parliament Debates held on 29th May 1951 Pt. Jawahar Lal Nehru, the then Prime Minister while moving the Bill to amend the Constitution stated as follows:

We have to deal with the situation where for a variety of causes for which the present generation is not to blame, the past has the responsibility, there are groups, classes, individuals, communities, if you like, who are backward. They are backward in many ways - economically, socially, educationally - sometimes they are not backward in one of these respects and yet backward in another. The fact is therefore that if we wish to encourage them in regard to these matters, we have to do something special for them....

There one has to keep a balance between the existing fact as we find it and the objective and ideal that we aim at.

38. Thereafter, the Bill was passed and Clause (4) to Article 15 was added by the Constitution (First Amendment) Act. The object of the newly introduced Clause (4) to Article 15 was to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutionally valid for the State to reserve seats for backward class of citizens, scheduled castes and scheduled tribes in the public educational institutions as well as to make other special provisions as may be necessary for their advancement.

Scope of Article 16(4) of the Constitution

39. Article 16(4) expressly permits the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State. As the power conferred on the State under this Clause 4 is to be exercised only if 'in the opinion of the State' that there is no adequate representation in the services under the State, a vital question arose for consideration whether the issue of determination by the State as to whether a particular class of citizens is backward or not is a justiciable one? This question was answered by the Constitution Bench of this Court in Trilok Nath Tiku and Anr. v. State of Jammu & Kashmir and Ors. : (1967)IILLJ271SC holding thus:

While the State has necessarily to ascertain whether a particular class of citizens are backward or not, having regard to acceptable criteria, it is not the final word on the question; it is a justiciable issue. While ordinarily a Court may accept the decision of the State in that regard, it is open to be canvassed if that decision is based on irrelevant considerations. The power under Clause (4) is also conditioned by the fact that in regard to any backward classes of citizens there is no adequate representation in the services under the State. The opinion of the State in this regard may ordinarily be accepted as final, except when it is established that there is an abuse of power.

40. The words ' 'backward class of citizens' occurring in Article 16(4) are neither defined nor explained in the Constitution though the same words occurring in Article 15(4) are followed by a qualifying phrase, 'Socially and Educationally''.

41. Though initially, Article 10(3) of the draft Constitution did not contain the qualifying word 'backward' preceding the words 'class of citizens' the said qualifying word was subsequently inserted on the suggestion of the Drafting Committee. Strong objection was taken for insertion of the word 'backward' and more so for the introduction of Article 10(3) of the draft Constitution. Amendments were moved by one section of the members of the Constituent Assembly for complete deletion of Clause (3) and by another section for the omission of the word 'backward'. The discussion and debate took place at length for and against the introduction of Clause (3) as well as for the insertion of the word 'backward'. Before the motions for amendments were put on vote, Dr. B.R. Ambedkar in answering the scathing criticism made in the course of the debate and explaining the significance of Clause (3) of Article 10 with the qualifying word 'backward' and insisting the sustenance of the said clause emphatically expressed his views as follows:

I am not prepared to say that this Constitution will not give rise to questions which will involve legal interpretation or judicial interpretation. In fact, I would like to ask Mr. Krishnamachari if he can point out to me any instance of any Constitution in the world which has not been a paradise for lawyers. I would particularly ask him to refer to the vast storehouse of law reports with regard to the Constitution of the United States, Canada and other countries. I am therefore not ashamed at all if this Constitution hereafter for purposes of interpretation is required to be taken to the Federal Court. That is the fate of every Constitution and every Drafting Committee. I shall therefore not labour that point at all.

42. While winding up the debate he said:. the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration...that no better formula could be produced than the one that is embodied in Clause (3) of Article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity has been embodied in Sub-clause (1) of Article 10. It is a generic principle.... Supposing for instance, we are to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity...I am sure they will agree that unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word 'backward' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly....

Somebody asked me: 'What is a backward community'? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend Mr. T.T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

(emphasis supplied)

(Constituent Assembly Debates, Volume VII Pages 700-703)

43. After the debate, two motions were put to vote but they were negatived. The unexpurgated draft Article 10(3) corresponds to the present Article 16(4) of the Constitution. It has now become necessary for this Court to interpret and explain the words 'backward class'.

44. There is a galaxy of decisions of this Court, explaining the words 'backward class' as occurring under Article 16(4) in relation to Articles 16(1) and 16(2) which I shall recapitulate in my endeavour to meet the arguments advanced by the learned Counsel appearing for various parties in interpreting the words 'backward class'.

45. The Government both in the earlier O.M. and the subsequent amended O.M. has used the expression 'socially and educationally backward classes' thereby qualifying the word 'backward' as 'socially and educationally backward' though in the second amended O.M., the 'economic backwardness' is alone taken as a ground for providing reservation for the economically backward section of the people not covered by the same of reservation meant for 'socially and educationally backward classes'.

46. The word 'backward' is very wide bringing within its fold the social backwardness, educational backwardness, economic backwardness, political backwardness and even physical backwardness.

47. To assimilate the expression 'class' in its legal sense, the said expression should be strictly construed and tested on the principles of agreed criteria which throw a flood light on its true meaning. In interpreting the words 'backward class', I am sorry to say there is no uniform and consistent view expressed by the Court by laying down a rigid formula exhaustively listing out the specific criteria. The battery of tests that are recognised by the Courts in determining 'socially and educationally backward classes' are caste, nature of traditional occupation or trade, poverty, place of residence, lack of education and also the substandard education of the candidates for the post in comparison to the average standard of candidates from general category. These factors are not exhaustive.

48. As to the questions (1) whether 'caste' can be taken as a criteria in determining and identifying a 'back-ward class' in Hindu society and (2) whether it could be a pre-dominant factor or one of the factors in identifying the backward class, there is a cleavage of opinion.

49. Ray, C.J. in State of Uttar Pradesh v. Pradeep Tandon and Ors. : [1975]2SCR761 has gone to the extent of saying that 'when Article 15(1) forbids discrimination on grounds only of religion, race, caste - caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15(4) will stultify Article 15(1)'. The effect of this judgment is that caste can never be a criterion. This decision has also ruled that the place of habitation and the environment are also the determining factors in judging the social and educational backwardness.

50. A good deal of arguments was advanced on the question whether caste can be the sole if not the dominant factor or at the least one of the factors or not at all. Whilst anti-reservation contend that the Report should be thrown overboard on the ground that the reservation is made on the caste criterion, the pro-reservations would forcibly refute that contention making counter submissions stating, inter-alia, that caste can justifiably be taken as an important and dominant factor if not the sole factor in determining the social and educational backwardness for various reasons as pointed out in the Report. Since backwardness is a direct consequence of caste status and the discrimination perpetuated against the socially backward people is based on the caste system, the caste criterion can never be divested while interpreting the word 'class'. Mr. K.K. Venugopal, the learned senior counsel while concluding his arguments has stated that caste if it is to be taken as one of the criteria, it must be at the end point and not the starting point. Therefore, even at the threshold, it has become obligatory to decide the question whether 'caste' should be completely excluded from being considered as one of the criteria, if not to what extent caste would become relevant in the determination and ascertainment of 'socially and educationally backward class'. There is a galaxy of decisions of this Court in explaining the words 'backward class' and 'caste' which I shall refer to at the appropriate place.

Meaning of 'Class' and 'Caste'

51. To identify the diversity of meanings of the words 'class' and caste' that constitute their inner complexity; to formulate the questions about them that are disputed and to examine as well as to assess the opposed voices in controversies that have ensued and to understand their semiology, I shall first of all reproduce the meanings of those words as lexically defined.

The Oxford English Dictionary (Volume II):

Class

(2) a division or order of society according to status; a rank or grade of society; ... (6) a number of individuals (persons or things) possessing common attributes, and grouped together under a general or 'class' name; a kind, sort, division.

Caste

(2) one of the several hereditary classes into which society in India has from time immemorial been divided; the members of each caste being socially equal, having the same religious rites, and generally following the same occupation or profession; those of one caste have no social intercourse with those of another; (3) the system or basis of this division among the Hindoos.

52. In Webster Comprehensive Dictionary (International Edition), the meaning of the words is given as follows:

Class

(1) A number or body of persons with common characteristics: the educated class; (2) social rank; caste

Caste

(1) one of the hereditary classes into which Hindu society is divided in India (2) the principle of practice of such division or the position it confers; (3) the division of society on artificial grounds; a social class

53. According to Webster's Encyclopedic Unabridged Dictionary of the English Language, meaning of the words 'class' and 'caste' is as follows:

Class

(1) a number of persons or things regarded as forming a group by reason of common attributes, characteristics, qualities, or traits, kind, sort (2) any division of persons or things according to rank or grade.... (9) Social, a social stratum sharing basic, economic, political or cultural characteristics and having the same social position ...(10) the system of dividing society; caste....

Caste

(1) Social, an endogamous and hereditary social group limited to persons of the same rank, occupation, economic position etc. and having mores distinguishing it from other such groups, (2) any rigid system of social distinctions (2) Hinduism, any of the four social divisions, the Brahman, Kshatriya, Vaisya and Sudra, into which Hindu society is rigidly divided, each caste having its own privileges and limitations, transferred by inheritance from one generation to the next (3) any class or group of society sharing common cultural features.... (6) pertaining to characterised by caste; a caste society; a caste system; a caste structure.

54. In Corpus Juris Secundwn (14), the meaning of words 'class' and 'caste' is given thus:

Class

A number of objects distinguished by common characters from all others, and regarded as a collective unit or group, a collection capable of a general division, a number of persons or things ranked together for some common purpose or possessing some attribute in common; the order of rank according to which persons or things are arranged or assorted;.....

Caste

A class or grade, or division of society separated from others by differences of wealth, hereditary rank or privileges, or by profession or employment, having special significance when applied to the artificial divisions or social classes into which the Hindus are rigidly separated.

55. Black Law Dictionary (Sixth Edition) Centennial Edition (1891-1991) gives the meaning of 'class' thus:

Class

A group of persons, things, qualities, or activities having common characteristics or attributes.

56. The word 'caste' is defined in Encyclopedia Americana (5) thus:

Caste

Caste is a largely, exclusive social class, membership in which is determined by birth and involves particular customary restrictions and privileges. The word derives from the Portuguese casta, meaning 'breed', 'race', or 'kind' and was first used to denote the Hindu social classification on the Indian subcontinent. While this remains the basic connotation, the word 'caste' is also used to describe in whole or in part social system that emerged at various times in other parts of the world....

57. The meaning of the word 'backward' is defined in lexicons as 'retarded in physical, material or intellectual development' or 'slow in growth or development; retarded''.

58. A careful examination of the meaning of the words 'class' and 'caste' as defined above by the various dictionaries, perceivably shows that these two words are not synonymous with each other and they do not convey the same meaning.

See R. Chitralekha and Anr. v. State of Mysore and Ors. : [1964]6SCR368 and Triloki Nath v. J & K State 1969 (1) SCR 103 and K.C. Vasanth Kumar v. Karnataka 1985 Supp.(1) SCR 352

59. The quintessence of the above definitions is that a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16(4) of the Constitution.

60. In the course of debate in the Parliament on the intendment of Article 16(4), Dr. B.R. Ambedkar, the then Minister for Law expressed his views that 'backward classes which are nothing else but a collection of certain castes.

61. The next important, but central point at issue is whether caste by the name of which a group of persons are identified, can be taken as a criterion in determining that caste as 'socially and educationally backward class' and if so, will it be the sole or dominant or one of the factors in the determination of 'social and educational backwardness'.

62. Before embarking upon a discussion relating to this aspect, it is pertinent to note the views of certain States as regards the caste criterion and economic criterion for identifying the 'backwardness'.

63. In reply to a questionnaire issued by the Second Backward Classes Commission, the State of Assam, Andhra Pradesh, Bihar, Gujarat, Karnataka, Kerala, Maharashtra, Punjab, Rajasthan and Uttar Pradesh stated that caste should be used as one of the criterion for identifying backwardness. Delhi, Dadra and Nagar Haveli, Haryana, Himachal Pradesh and Madhya Pradesh stated that caste should not be made a criterion of backwardness. Bihar, Gujarat, Himachal Pradesh, Kerala, Punjab, Rajasthan and Uttar Pradesh suggested low economic status as one of the significant tests, while Delhi, Dadra and Nagar Haveli and Haryana desired the economic factor to be the sole determinant of backwardness.

64. Articles 15(4), 16(4) and 340(1) do not speak of 'caste' but only 'class'. The learned Counsel particularly those appearing for anti-reservation have stressed that if the makers of the Constitution had really intended to take 'caste or castes' as conveying the meaning of socially and educationally backward class, they would have incorporated the said word, 'caste or castes' in Articles 15(4) and 340(1) as 'socially and educationally backward caste or castes' instead of 'class or classes' as they have adopted the expression in the case of 'scheduled castes and scheduled tribes'. Similarly in Article 16(4) also, they would have used the words as 'backward caste or castes' instead of 'backward class'. It has been further urged that the very fact that the framers of the Constitution in their wisdom thought of using a wider expression, 'classes' in Article 15(4) and 340(1) and 'class' in Article 16(4) alludes that they did not have the intention of equating classes with the castes.

65. The word 'caste' is not used in the Constitution as indicative of any section of people or community except in relation to 'Scheduled Castes' which is defined in Article 366(24). However, the word 'caste' in Articles 15(2), 16(2) and 29(2) does not include 'scheduled caste' but it refers to a caste within the ordinary meaning of caste. The word 'scheduled caste' came into being only by the notification of President under Article 341. It would be appropriate, in this connection, to recall the observation of Fazal Ali, J in his separate but concurring judgment in State of Kerala and Ors. v. N.M. Thomas and Ors. : (1976)ILLJ376SC , he has said that 'the word 'caste' appearing after 'scheduled' is really a misnomer and has been used only for the purpose of identifying this particular class of citizens which has a special history of several hundred years behind it'.

66. Mathew, J in his separate judgment in the same case (Thomas) has expressed that 'it is by virtue of the notification of the President that the 'Scheduled Castes' came into being'.

67. Reference also may be made to the observation of Krishna Iyer, J in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India and Ors. : (1981)ILLJ209SC where he has said:

Terminological similarities are an illusory guide and we cannot go by verbal verisimilitude. It is very doubtful whether the expression caste will apply to Scheduled Castes. At any rate, Scheduled Tribes are identified by their tribal denomination. A tribe cannot be equated with a caste. As stated earlier, their are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes.

68. There is a long line of decisions dealing with the significance of the word 'caste' in relation to Hindus as being one of the relevant criteria, if not the sole criterion for ascertaining whether a particular person or group of persons will fall within the wider connotation of 'class'.

69. In M.R. Balaji v. State of Mysore. 1963 (Suppl.) 1 SCR 439, Gajendragadkar, J observed, ' Though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be the sole or the dominant test in that behalf.

70. Subba Rao, J speaking for the majority of the Constitution Bench in R. Chitralekha v. State of Mysore : [1964]6SCR368 has stated:.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.

71. Mudholkar, J in his dissenting judgment in considering the caste in determination of the backward class, has expressed his view thus:.it would not be in accordance either with Clause (1) of Article 15 or Clause (2) of Article 29 to require the consideration of the castes of persons to be borne in mind for determining what are socially and educationally backward classes. It is true that Clause (4) of Article 15 contains a non-obstante clause with the result that power conferred by that clause can be exercised despite the provisions of Clause (1) of Article 15 and Clause (2) of Article 29. But that does not justify the inference that castes have any relevance in determining what are socially and educationally backward communities.

72. Wanchoo, C.J. speaking for the Constitution Bench in Minor P. Rajendran v. State of Madras and Ors. : [1968]2SCR786 pointed out that '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).

73. The learned Chief Justice in support of his above observation has placed reliance on Balaji.

74. In State of Andhra Pradesh V. P. Sagar : [1968]3SCR595 , it has been observed:.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. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted.

75. Triloki Nath v. J & K State (II) 1969 (1) SCR 103 Shah, J speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that '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.

76. Further, this judgment reaffirms the view in Minor P. Rajendran's case to the effect that if the members of an entire caste or community at a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because they are members of that caste or community but because they form a class.

77. Hegde, J in A. Peeriakaruppan, etc. v. State of Tamil Nadu : [1971]2SCR430 has observed:

A caste has always been recognised as a class.

78. Vaidialingam, J in State of Andhra Pradesh and Ors. v. U.S.V. Balram etc. : [1972]3SCR247 in his conclusion upheld the list of Backward Class in that case as they satisfied the various tests, which have been laid down by this Court for ascertaining the social and educational backwardness of a class even though the said list was exclusively based on caste.

79. Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. : [1977]1SCR194 was of the view that ' '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....

80. Speaking for the Bench in U.P. State v. Pradip Tandon Ray, the learned Chief Justice after stating that neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15(4) when Article 15(1) forbids discrimination on grounds only of religion, race, caste -observed that caste cannot be made one of the criteria for determining social and educational backwardness and that if the caste or religion is recognised as a criterion of social and educational backwardness, Article 15(4) still stultify Article 15(1). Further, he observed that 'It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste but when a classification taken recourse to caste as one of the criteria in determining socially and educationally backward classes, the expression 'classes' in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste.

81. The learned Chief Justice also recognised the meaning of the expression 'classes of citizens' in line with the observation made in Triloki Nath (II) and Sagar (supra) and explained the traits of social backwardness, economic backwardness and educational backwardness.

82. See also Akhil Bhartiya Soshit Karamchari Sangh (supra) and K.C. Vasanth Kumar (supra).

83. Though there is tremendous ambivalence in a host of judgments rendered by this Court, not even a single judgment has held that class has no relevance to caste at all wherever caste system is prevalent.

84. Collating the above said views expressed by this Court in a catena of decisions as regards the relevance and significance of the caste criterion in the field of identification of 'socially and educationally backward classes' it may be stated that caste neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of 'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens. Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the 'backward class', a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of 'backward class of citizens' under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata - indicating the social backwardness.

85. True, the caste system is predominantly known in Hindu society and runs through the entire fabric of the social structure. Therefore, the caste criterion cannot be divested from the other established and agreed criteria in identifying and ascertaining the backward classes.

86. It is said that the caste system is unknown to other communities such as Muslims, Christians, Sikhs, Jews, Parsis, Jains etc. in whose respective religion, the caste system is not recognised and permitted. But in practice, it cannot be irrefutably asserted that Islam, Christianity, Sikhism are all completely immune from casteism.

87. There are marked distinctions in one form or another among various sections of the Muslim community especially among converts to Islam though Islam does not recognise such kind of divisions among Muslims and professes only common brotherhood.

88. There are various sects or separate group of people in Muslim communities being identified by their occupation such as Pinjara in Gujarat, Dudekula (cotton beaters) in Andhra Pradesh, Labbais, Rowthar and Marakayar in Tamil Nadu.

89. Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians and Harijan Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindus, they interact and have their familial relationship and marital alliances only within the converted caste groups.

90. In Tamil Nadu, after persistent effort and agitations some of the sections of people belonging to some castes or communities converted either to Islam or Christianity have become successful in having them included in the list of 'backward classes' on par with their corresponding Hindu caste people.

91. The Government of Tamil Nadu on the basis of the report of the Second Backward Classes Commission issued a revised list of 'backward classes' by GO Ms. No. 1564 (Social Welfare Department) dated 30th July 1985 wherein the following castes and communities converted to Islam and Christianity are included for the purpose of reservation under Articles 15(4) and 16(4) of the Constitution.

Serial No.

26 Converts to Christianity from Scheduled Castes irrespective of the generation of conversion for the purpose of reservation of seats in Educational Institutions and for seats in Public Services.

98* Labbais including Rowthar and Marakayar (whether their spoken language is Tamil or Urdu.)

100 Latin Catholics...: in Kanyakumari district and Shenkottah taluk of Tirunelveli district.

110 Meenavar, Parvatharajakulam, Pattanavar, Sembadavar (including converts to Christianity).

115 Mukkuvar or Mukayar (including converts to Christianity)

118 Nadar, Shanar and Gramani, including Christian Nadar, Christian Shanar and Christian Gramani.

136 Paravar including converts to Christianity (except in Kanyakumari district and Shenkottah taluk of Tirunelveli district where the community is a Scheduled Caste.)

* Item No. 98 denotes Muslim community.

92. By another G.O Ms No. 1565 dated 30th July 1985, the Government of Tamil Nadu directed the reservation of seats at 50% for Backward Classes and 18% for Scheduled Castes and Scheduled Tribes in respect of all courses in all kinds of educational institutions as well as in all Services in the Government of Tamil Nadu. Thereafter, another G.O Ms No. 558 dated 24th February 1986 on the representation of Christian converts was issued, the relevant paragraphs of which read as follows:

(5) Accordingly, the Government declare that, in addition to the Christian Converts mentioned in paragraph one above, the persons belonging to the other Christian communities who are converts from any Hindu community included in the list of Backward Classes also will be considered as socially and educationally backward for the purposes of Article 15(4) of the Constitution.

(6) The Government also declare that, in addition to the Christian converts mentioned in paragraph one above, the persons belonging to the other Christian communities who are converts from any Hindu community included in the list of Backward Classes also will be considered as Backward Classes of citizens and that they are not adequately represented in the services under the State with reference to Article 16(4) of the Constitution.

93. The Christian converts mentioned in the above G.O. relates to the list of Christian converts mentioned in G.O. Ms No. 1564 dated 30th July 1985.

94. As per the statistics given in the Report of the Second Backward Classes Commission, in Tamil Nadu out of 27,05,960 people belonging to Muslim minorities 25,60,195 are included in the backward list which works out to 94.61% of the total Muslim population of the State. Similarly, among Christians, out of 31, 91,988 of the total population, 25,48,148 are included in the backward list which works out to 79.83% .

95. The Nav. Budhists, and Neo Budhists the majority of whom are converts from Scheduled Castes enjoy the reservation on the ground that their low status in that community have not become advanced equal to the status of others and their social backwardness is not changed inspite of the change of their religion.

96. Sikhism, no doubt, strictly believes in social equality and justice, denounces all sorts of social discrimination between man and man, strongly advocates the equality and parity in all humanity and propagates that caste, birth or colour cannot make one superior or inferior. All the Gurus of Sikhism have advocated and articulated the concept of equality of man as the basis of egalitarian society. Notwithstanding Sikhism is violently against casteism, some converts to Sikhism from the Scheduled Castes still retain their caste label.

97. Thus even among non-Hindus, there are occupational organisations or social groups or sects which are having historical background/evolution. They too constitute social collectives and form separate classes for the purposes of Article 16(4).

98. Though in India, caste evil originated from Hindu religion that evil has taken its root so deep in the social structure of all the Indian communities and spread its tentacles far and wide thereby leaving no community from being influenced by the caste factor. In other words, it cannot be authoritatively said that some of the communities belonging to any particular religion are absolutely free from casteism or at least from its shadow. The only difference being that the rigour of caste varies from religion to religion and from region to region. Of course, in some of the communities, the influence of the caste factor may be minimal. So far as the Hindu society is concerned, it is most distressing to note that it receives sanction from the Hindu religion itself and perpetuated all through.

99. Reference may be made to paragraphs 12.11 to 12.16 of Chapter XII of the Report.

100. After identifying in paragraph 12.18, the Commission has laid down the following tests for identifying non-Hindu OBCs:

12.18 After giving a good deal of thought to these difficulties, the Commission has evolved the following rough and ready criteria for identifying non-Hindu OBCs:

i) All untouchables converted to any non-Hindu religion; and

ii) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. (Examples: Dhobi, Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc.)

101. Even assuming that the caste factor would not furnish a reliable yardstick to identify 'socially and educationally groups' in the communities other than Hindu community as there is no commonness since all sections of people among Budhists, Muslims, Sikhs and Christians etc. and as the respective religion of those communities do not recognise the caste system, yet on the principle of the other agreed criteria such as traditional occupation, trade, place of residence, poverty lack of education or economic backwardness etc, the social and economic backwardness of those communities could be identified independently of the caste criterion. Once these 'casteless societies' are tested on the anvil of the established relevant criteria de hors the caste criterion, there may not be any difficulty in identifying the socially and educational backwardness of the section of the people of that community and classifying them as 'backward class of citizens' within the meaning of Article 16(4).

102. In this connection, reference may be made to the observation of this Court in Chitralekha (supra) 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.

103. More often than not, a question that is put forth is should the caste label be accepted as a criterion in ascertaining the social and educational backwardness of a group of persons or community. No doubt, it is felt that in identifying and classifying a group of persons or community as 'socially and educationally backward class', it should be done de hors the caste label. But all those who address such a question turn a blind eye to the existing stark reality that in the Hindu society ever since the caste system was introduced, till today, the social status of a Hindu is so woven or inextricably intertwined and fused with the caste system to such an extent that no one in such a situation can say that the caste is not a primary indicator of social backwardness and that social backwardness is not identifiable with reference to the caste of an individual or group of persons or community. However, painful and distasteful, it may be, we have to face the reality that under the hydraulic pressure of caste system in Hindu society, a major section of the Hindus under multiple caste labels are made to suffer socially, educationally and economically. There appears no symptoms of early demise of this dangerous disease of caste system or getting away from the caste factor inspite of the fact that many reformative measures have been taken by the Government. Unless this caste system, unknown to other parts of the world is completely eradicated and all the socially and educationally backward classes to whichever religion they belong inclusive of Scheduled Castes and Scheduled Tribes are brought up and placed on par with the advanced section of the people, the caste label among Hindus will continue to serve as a primary indicator of its social backwardness.

104. Though I am not inclined to exhaustively elaborate the untold agony and immeasurable sufferings undergone by the people in the lower strata under the label of their respective caste, I cannot avoid but citing a jarring piece of information appearing in the Report. The noted and renowned Sociologist J.R. Kamble in Rise & Awakening of Depressed Classes in India published by National Publishing House, New Delhi has quoted a passage from the issue of 'Hindu' dated 24.12.1932 as an example of visual pollution existing in Tinnevelli (Tamil Nadu) which the Mandal Commission has extracted in Chapter IV vide para 4.13 of its report:

4.13 ...In this (Tinnevelly) district there is a class of useable called purada vannans. They are not allowed to come out during day time because their sight is considered to be pollution. Some of these people who wash the clothes of other exterior castes working between midnight and day-break, were with difficulty persuaded to leave their houses to interview.

105. Does not the very mention of the caste named 'purada vannans' indicate that the people belonging to that community were so backward, both socially, economically as well as educationally beyond comprehension? Would the children of those people who were not allowed to come out during day time have gone to any school? Does not the very fact that those people were treated with contempt and disgrace as if they were vermin in the human form freeze our blood? Alas! What a terrible and traumatic experience it was for them living in their hide-outs having occasional pot-luck under pangs of misery, all through mourning over their perilous predicament on account of this social ostracism. When people placed at the base level in the hierarchical caste system are living like mutes, licking their wounds - caused by the deadening weight of social customs and mourning over their fate for having born in lower castes - can it be said by any stretch of imagination that caste can never be the primary criterion in identifying the social, economic and educational backwardness? Are not the social and economic activities of Shudras and Panchamas (untouchables) severely influenced by their low caste status?

106. There is no denying that many of the castes are identified even by their traditional occupation. This is so because numerous castes arranged in a hierarchical order in the Hindu social structure are tied up with their respective particular traditional occupation consequent upon the creation of four Varnas on the concept of divine origin of caste system based on the Vedic principles. Can it be said that the propagation and practice on the caste- based discrimination; the marked dividing line between upper caste Hindus and Shudras, and the practice of untouchability inspite of the Constitutional declaration of abolition of untouchability under Article 17 are completely eradicated and erased? Can it be said that the social backwardness has no relation to caste status? The unchallengeable answer for the first question would be in the negative and for the second question, the answer would be that social backwardness does have a relation with the caste status.

107. It is not germane for my purpose to enter into a lengthy deliberation as to how religion and mythology were used for founding the social institution in Hindu society containing so much of inequalities and discrimination among the people professing the same Hinduism.

108. The Mandal Commission in Chapter IV of its report under the heading 'Social Backwardness and Caste'' has concluded its view with a query under paragraph 4.33 of its Report (Volume I) thus:

In view of the foregoing will it be too much to say that in the traditional Indian society social backwardness was a direct consequence of caste status....

109. Though the Government both on the Central and State level have taken and are taking positive steps through law and other reformative measures to eradicate this social evil, it is heart-rending to note that in many circumstances, the caste system is being perpetuated instead of being banished for the reasons best known to those perpetratOrs.

110. It is common knowledge that in Hindu society, if a person merely mentions the name of a traditional occupation, another by his empirical knowledge can immediately identify the caste by the said traditional occupation. To illustrate, the traditional occupation of washing clothes is identified with washerman (Dhobi), caste, traditional occupation of hair-cutting is identified with Barber (Nai) - caste, traditional occupation of pottery is identified with Potter (Kumhar's caste), and so on. Of course in modern times, persons belonging to any particular caste might have shifted over to other occupation leaving their traditional occupation but generally speaking, the occupation is identified with the caste and vice-versa. Many backward castes have taken 'agriculture' as their profession. In such an unquestionable situation, in my opinion, there can be no justification in saying that caste in Hindu society cannot serve as a primary criterion even at the starting point in ascertaining its social, economic and educational backwardness. To say that in the effort of ascertaining social backwardness, caste should be considered only at the end point, is a misnomer and fallacious. Because after identifying and classifying a group of persons belonging to a particular caste by testing with the application of the relevant criteria other than the caste criterion, the identification of the caste of that class of persons is no more required as in the case of identification of casteless society as a backward class. In fact, this Court in a number of decisions has held that a caste may become a 'backward class' provided that caste satisfies the test of backwardness.

111. It is apposite, in this context, to make reference of the views expressed by the Mandal Commission stating that there is 'a close linkage between caste ranking of a person and his social educational and economic status.... In India, therefore, the low ritual caste status of a person has a direct bearing on his social backwardness''.

112. Chinnappa Reddy, J in Vasanth Kumar points out that the social investigator '...may freely perceive those pursuing certain 'lowly' occupation as socially and educationally backward classes.

113. In passing, I would like to make reference to the pith and substance of the report of Kaka Kalekar, according to which the relevant factors to consider in classifying 'backward class' would be their traditional occupation or profession, the percentage of literary or the general educational advancement made by them; the estimated population of the community, and the distribution of the various communities throughout the State or their concentration in certain areas.

What the Expression 'Backward Class' means?

114. In Minor P. Rajendran (supra), Wanchoo, CJ speaking for the Constitution Bench has stated that 'a caste is also a 'class of citizens' and that reservation can be made in such a case provided if that caste as a whole is socially and educationally backward within the meaning of Article 15(4)'.

115. Reference may also be made to Triloki Nath (II) (supra) and Balaram.

116. The facts in Balaram (cited above) disclose that for the admission to the integrated M.B.B.S. Course in the government medical colleges in Andhra Pradesh, the Government issued a GO making a reservation of 25% of seats in favour of 'backward classes' as recommended by the Andhra Pradesh Backward Classes Commission besides other reservations inclusive of reservation for Scheduled Castes and Scheduled Tribes. The reservation for the 'backward classes' was challenged on the ground that the Government Order violated Article 15(1) read with Article 29 and that the reservation was not saved by Article 15(4). The High Court held that the Commission had merely enumerated the various persons belonging to a particular caste as 'backward classes' which was contrary to the decision of this Court and violative of the constitutional provisions and consequently struck down the GO. The Government preferred an appeal before this Court. Vaidialingam, J speaking for the Bench has observed:

In the determination of a class to be grouped as backward, a test solely based upon caste or community cannot be valid. But, in our opinion, though Directive Principles contained in Article 46 cannot be enforced by Courts, Article 15(4) will have to be given effect to in order to assist the weaker sections of the citizens, as the State has been charged with such a duty. No doubt, we are aware that any provision made under this clause must be within the well defined limits and should not be on the basis of caste alone. But it should not also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward, in our opinion, the reservation made of 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 gainsaying 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 State as charged in Article 15(4) to safeguard their interest.

(emphasis supplied)

117. The decisions which we have referred to above .support the view that a caste is also a class of citizens and that if that caste satisfies the requisite tests of backwardness, then the classification of that caste as a backward class is not opposed to Article 16(4) notwithstanding that a few individuals of that caste are socially and educationally above the general average. I am in full agreement with the above view.

118. The composition and terms of reference of the Second Backward Classes Commission show that the Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India but not the socially, economically and educationally backward classes. The earlier O.M. issued on 13.8.90 reads that with a view to providing certain weightage to socially and educationally backward classes in the services of the Union and their Public Undertakings, as recommended by the Commission, the orders are issued in the terms mentioned therein. The said O.M. also explains that 'the SEBC would comprise in the first phase the castes and communities which are common to both the lists, in the report of the Commission and the State Governments' list''. In addition it is said that a list of such castes/communities is being issued separately. The subsequent amended O.M. dated 25.9.91 states that in order to enable the 'poorer sections' of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation, the Government have decided to amend the earlier Memorandum. Thus this amended O.M. firstly speaks of the 'poorer sections' of the SEBCs and secondly about the economically backward sections of the people not covered by any of the existing schemes of reservation. However, both the O.M.s while referring to the SEBCs, do not include the 'economic backwardness' of that class along with 'social and educational backwardness'. By the amended O.M., the Government while providing reservation for the backward sections of the people not covered by the existing schemes of reservation meant for SEBCs, classifies that section of the people as 'economically backward', that is to say that those backward sections of the people are to be identified only by their economic backwardness and not by the test of social and educational backwardness, evidently for the reason that they are all socially and educationally well advanced.

119. Coming to Article 16(4) the words 'backward class' are used with a wider connotation and without any qualification or explanation. Therefore, it must be construed in the wider perspective. Though the OMs speak of social and educational backwardness of a class, the primary consideration in identifying a class and in ascertaining the inadequate representation of that class in the services under the State under Article 16(4) is the social backwardness which results in educational backwardness, both of which culminate in economic backwardness. The degree of importance to be attached to social backwardness is much more than the importance to be given to the educational backwardness and the economic backwardness, because in identifying and classifying a section of people as a backward class within the meaning of Article 16(4) for the reservation of appointments or posts, the 'social backwardness' plays a predominant role.

120. Ray, C.J. in Jayashree is of the view that 'Social backwardness can contribute to educational backwardness and educational backwardness may perpetuate social backwardness. Both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition.

121. The very fact that the Commission itself has given a weightage of 12 points to 'social backwardness' and 6 points to 'educational backwardness' and 4 points to 'economic backwardness' (vide paragraph 11.24 of Chapter XI) shows in very clear terms that 'social backwardness' is taken as a predominant factor in ascertaining the backwardness of a class under Article 16(4).

122. In M.R. Balaji v. State of Mysore 1963 1 SCR 439 Gajendragadkar. J observed that 'economic backwardness might have contributed to social backwardness....' This observation tends to show that Gajendragadkar, J was of the view that economic backwardness may contribute to social backwardness. With respect to the learned Judge, I am unable to agree with his view.

123. Desai, J in Vasanth Kumar has expressed a similar view that if economic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of 'socially and educationally backwardness...' thereby holding that only criterion which can be devised is the 'economic backwardness' for identifying 'socially and educationally backward classes' ignoring the predominance of social backwardness. I am unable to share with this above view.

124. How far the Courts would be competent to identify the 'Backward class' is explained by Chinnappa Reddy, J in Vasanth Kumar in the following words:

We are afraid Courts are not necessarily the most competent to identify backward classes or to lay down guidelines for their identification except in broad and very general way. We are equipped for; that we have no legal barometers to measure social backwardness. We are truly removed from the people, particularly those of the backward classes, by layer upon layer of gradation and degradation.

125. Let us have a glance over the Report in identifying the 'backward classes' by testing the same on the touchstone of various established criteria.

126. In chapter XI of the Report (Volume I part I) under the caption 'Socio-Educational Field Survey and Criteria of Backwardness' it is categorically stated that after most comprehensive enquiries and survey in the socio-educational fields with the association and help of top social scientists and specialists in the country as well as experts from a number of disciplines, the Commission had prepared the 'Indicators (Criteria) for Social and Educational Backwardness' on the analysis of data and submitted its report. The relevant paragraphs 11.23, 11.24 and 11.25 showing the criteria for identification of backwardness are as follows:

Indicators (Criteria) for Social and Educational Backwardness

11.23 As a result of the above exercise, the Commission evolved eleven 'Indicators' or 'criteria' for determining social and educational backwardness. These 11 'Indicators' were grouped under three broad heads, i.e. Social, Educational' and Economic. They are:

A. Social

(i) Castes/Classes considered as socially backward by others.

(ii) Castes/Classes which mainly depend on manual labour for their livelihood.

(iii) Castes/Classes where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.

(iv)Castes/Classes where participation of females in work is at least 25% above the State average.

B. Educational

(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.

(vi)Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.

(vii)Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.

C. Economic

(viii)Castes/Classes where the average value of family assets is at least 25% below the State average.

(ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.

(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.

(xi)Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.

11.24 As the above three groups are not of equal importance for our purpose, separate weightage was given to 'Indicators' in each group. All the Social 'Indicators' were given a weightage of 3 points each, Educational 'Indicators' a weightage of 2 points each and Economic 'Indicators' a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.

11.25 It will be seen that from the values given to each Indicator, the total score adds upto 22. All these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 per cent (i.e. 11 points) or above were listed as socially and educationally backward and the rest were treated as 'advanced'. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference.

127. It is crystal clear that the Commission only on the basis of the galaxy of facts unearthed and massive statistics collected by it, has made its recommendations on a very scientific basis of course taking 'caste' as the primary criterion in identifying the backward class in Hindu society and the occupation as the basis for identifying all those in whose societies, the caste system is not prevalent.

128. It is not necessary for a class to be designated as a backward class that it should be situated similarly to the Scheduled Castes and Scheduled Tribes.

129. Vaidialingam, J in Balaram while examining a similar issue after making reference to the cases of Balaji, Chitralekha and P. Sagar stated, 'None of the above decisions lay down that socially and educationally backward class must be exactly similar in all respects to that of Scheduled Castes and Scheduled Tribes.

130. Chinnappa Reddy, J in Vasanth Kumar while dealing with the observations made in Balaji 'that the backward classes for whose improvement special provision is contemplated by Article 15(4) sure in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes' observed thus:

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.

Criticism levelled against Mandal Commission Report

131. The learned senior counsel, Mr. N.A. Palkhiwala, Mr. K.K. Venugopal, Smt. Shyamala Pappu and Mr. P.P. Rao assisted by a battery of layers appearing for the petitioners condemn the recommendations of the Commissions on the various grounds. Therefore, it has become unavoidable to meet their challenges, it may not be necessary otherwise to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission.

132. Taking pot-shots at the Mandal Report recommending exclusive reservation for SEBCs, the belligerent anti-reservation denigrate the report by making scathing criticism and indiscriminately trigger off a volley of bullets against the Report. The first attack against the Report is that it is perpetuating the evils of caste system and accentuating caste consciousness besides impeding the doctrine of secularism, the net effect of which would be dangerous and disastrous for the rapid development of the Indian society as a whole marching towards the goal of the welfare state. According to them the identification of SEBCs by the Commission on the basis of caste system is bizarre and barren of force, much less exposing hollowness. Therefore, the OMs issued on the strength of the Mandal Report which is solely based on the caste criterion arc violative of Article 16(2).

133. The above criticism, in my considered view, is very uncharitable and bereft of the factual position. Hence it has to be straightaway rejected as unmeritorious since that Report is not actually based solely on caste criteria but on the anvil of various factors grouped under three heads i.e. social, educational and economic backwardness but giving more importance -rightly too - to the social backwardness as 'having a direct consequence of caste status.

134. Adopting the policy of 'Running with the hare and hunting with the hounds', a conciliatory argument was advanced saying that although it is necessary to make provisions for providing equality of opportunity in matters of public employment 'in favour of any backward class' in terms of Article 16(4), the present Report based on 1931 census can never serve a correct basis for identifying the 'backward class', that therefore, a fresh Commission under Article 340(1) of the Constitution is required to be appointed to make a fresh wide survey through out the length and breadth of the country and submit a new list of OBCs (other backward classes) on the basis of the present day Census and that there are million ways of guaranteeing progress of backward classes and ensuring that it percolates down the social scale, but the Mandal commission is the one.

135. Firstly, in my view if the above argument is accepted it will result in negation of the just claim of the SEBCs to avail the benefit of Articles 16(4) which is a fundamental right.

136. Secondly, this attack is based on a misconception. A perusal of the Report would indicate that the 1931 census does not have even a remote connection with the identification of OBCs. But on the other hand, they are identified only on the basis of the country-wide socio-educational field survey and the census report of 1961 particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes and personal knowledge gained through extensive touring and receipt of voluminous public evidence and lists of OBCs notified by various States. It was only after the identification of OBCs, the Commission was faced with the task of determining their population percentage and at that stage 1931 census became relevant. It is to be further noted after 1931 census, no caste-wise statistics had been collected. In fact, the identification of classes by the Commission was based on the realities prevailing in 1980 and not in 1931. It is brought to our notice that the same method had already been adopted in Section 5 of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

137. Thirdly, the Commission cannot be said to have ignored this factual position and found fault with for relying on 1931 census. In fact, this position is made clear by the Commission itself in Chapter XII of its Report, the relevant paragraphs of which read thus:

12.19 Systematic caste-wise enumeration of population was introduced by the Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of caste-wise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes, communities, and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total population of the country.

12.10 Working on the above basis, the Commission culled out caste/ community-wise population figures from the census records of 1931 and, then grouped them into broad caste-clusters and religious groups. These collectivities were subsequently aggregated under five major heads i.e. (i) Scheduled Castes and Scheduled Tribes; (ii) Non-Hindu communities, Religious Groups, etc.; (iii) Forward Hindu Castes and Communities; (iv) Backward Hindu Castes and Communities; and (v) Backward Non-Hindu Communities...

138. In Balaram, wherein a similar argument was addressed, this Court after going through the Report of the Backward Classes Commission of the State of Andhra Pradesh, felt the difficulty of the non-availability of the caste-wise statistics after 1931 census and pointed out that in Andhra, the figures of 1921 census were available and in Telangana area, 1931 census of caste-wise statistics was available.

139. In the background of the above discussion, the anti-reservation cannot have any legitimate grievance and justifiably demand this Court to throw the Report over-board on the mere ground that 1931 census had been taken into consideration by the Commission.

140. As pointed out by this Court in Balaram that no conclusions can always be scientifically accurate in such matters. If at all the attack perpetrated on the Report renders any remedy to the anti-reservation, it would be only for the purpose of putting the Report in cold storage as has happened to the Report of the First Backward Classes Commission.

141. Therefore, for the aforementioned reasons, I hold that the above submission made against the Report with reference to the consideration of Census of 1931 cannot be countenaneed.

142. After having gone through the Commission's Report very assiduously and punctiliously, I am of the firm view that the Commission only after deeply considering the social, educational and economic backwardness of various classes of citizens of our country in the light of the various propositions and tests laid down by this Court had submitted its Report enumerating various classes of persons who are to be treated as OBCs. The recommendations made in the present Report after a long lull since the submission of the Report by the First Backward Classes Commission, are supportive of affirmative action programmes holding the members of the historically disadvantaged groups for centuries to catch up with the standards of competition set up by a well advanced society.

143. As a matter of fact, the Report wanted to reserve 52% of all the posts in the Central Government for OBCs commensurate with their ratio in the population. However, in deference to legal limitation it has recommended a reservation of 27% only even though the population of OBCs is almost twice this figure.

144. Yet another argument on behalf of the anti-reservation was addressed contending that if the recommendations of the Commission are implemented, it would result in the sub-standard replacing the standard and the reins of power passing from meritocracy to mediocrity; that the upshot will be in demoralization and discontent and that it would revitalize caste system, and cleave the nation into two - forward and backward - and open up new vistas for internecine conflict and fissiparous forces, and make backwardness a vested interest.

145. The above tortuous line of reasoning, in my view is not only illogical, inconceivable, unreasonable and unjustified but also utterly overlooks the stark grim reality of the SEBCs suffering from social stigma and ostracism in the present day scenario of hierarchical caste system. The very object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to those who have been placed in a very discontent position from time immemorial on account of sociological reasons. To put it differently, the purpose of Clause (4) is to ensure the benefits flowing from the fountain of this clause on the beneficiaries - namely the Backward Classes - who in the opinion of the Constitution makers, would have otherwise found it difficult to enter into public services, competing with advanced classes and who could not be kept in limbo until they are benefited by the positive action schemes and who have suffered and are still suffering from historic disabilities arising from past discrimination or disadvantage or both. However, unfortunately all of them had been kept at bay on account of various factors, operating against them inclusive of poverty. They continue to be deprived of enjoyment of equal opportunity in matters of public employment despite there being sufficient statistical evidence in proof of manifest imbalance in Government jobs which evidence is sufficient to support an affirmative action plan. If candidates belonging to SEBCs (characterised as mediocre by anti-reservation), are required to enter the open field competition, along with the candidates belonging to advanced communities without any preferential treatment in public Services in their favour and go through a rigid test mechanism being the highly intelligence test and professional ability test as conditions of employment, certainly those conditions would operate as 'built-in headwinds' for SEBCs. It is, therefore, in order to achieve equality of employment opportunity, Clause 4 of Article 16 empowers the State to provide permissible reservation to SEBCs in the matters of appointments or posts as a remedy so as to set right the manifest imbalance in the field of public employment.

146. The argument that the implementation of the recommendations of the Commission would result in demoralisation and discontent has no merit because conversely can it not be said that the non-implementation of the recommendations would result in demoralisation and discontent among the SEBCs.

147. Though 'equal protection' clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people, nonetheless it requires the State to afford substantially equal opportunities to those, placed unequally.

148. The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally.

149. It is. more appropriate to recall that 'There is equality only among equals and to equate unequals is to perpetuate inequality.

150. Therefore, the submission that the implementation of the recommendations of the Report will curtail concept of equality as enshrined under Article 14 of the Constitution and destroy the basic structure of the Constitution, cannot be countenanced.

151. One of the arguments criticising the Report is that the said Report virtually rewrites the Constitution and in effect buries 50 fathoms deep the ideal of equality and that if the recommendations are given effect to and implemented, the efficiency of administration will come to a grinding halt. This submission is tantamount to saying that the reservation of 27% to SEBCs as per the impugned QMs is opposed to the concept of equality.

152. There is no question of rewriting the Constitution, because the Commission has acted only under the authority of the notification issued by the President. It has after laying down the parameters in the light of the various pronouncements of this Court has ultimately submitted its Report recommending the reservation in tune with the spirit of Article 16(4).

153. The question whether the candidates, belonging to the SEBCs should be given a preferential treatment in matters of public employment to such time as it is necessary, receives a fitting reply in Devadasan wherein Subba Rao, J (as the learned Chief Justice then was) has observed, by citing an illustration as to how the manifest imbalance and inequality will occur otherwise, thus:

To make my point clear, take the illustration of a horse race. Two horses are set down to run a race -one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced Clause (4) in Article 16.

154. It will be befitting, in my opinion, to extract a passage from the book, Bakke, Defunis and Minority Admissions (The Quest for Equal Opportunity) by Allan P. Sindler wherein at page 9, the unequal competition is explained by an analogy which is as follows:

A good way to appreciate the 'something more' quandary is to consider the metaphor of the shackled runner, an analogy frequently advanced by spokesmen for minorities:

Imagine two runners at the starting line, readying for the 100-yard dash. One has his legs shackled, the other not. The gun goes off and the race begins. Not surprisingly, the unfettered runner immediately takes the lead and then rapidly increases the distance between himself and his shackled competition. Before the finish line is crossed, over the judging official blows his whistle, calls off the contest on the grounds that the unequal conditions between the runners made it an unfair competition, and orders removal of the shackles.Surely few would deny that pitting a shackled runner against an unshackled one is inequitable and does not provide equality of opportunity. Hence, canceling the race and freeing the disadvantaged runner of his shackles seem altogether appropriate. Once beyond this point, however, agreement fades rapidly. The key question becomes: what should be done so that the two runners can resume the contest on a basis of fair competition? Is it enough after removing the shackles, to place both runners back at the starting point? Or is 'something more' needed, and if so, what? Should the rules of the running be altered, and if so, how? Should the previously shackled runner be given a compensatory edge, or should the other runner be handicapped in some way? How much edge or handicap?

155. To one of the queries posed by the author of the above analogy, the proper reply would be that even if the shackles whether of iron chains or silken cord, are removed and the shackled person has become unfettered, he must be given a compensatory edge until he realises that there is no more shackle on his legs because even after the removal of shackles he does not have sufficient courage to compete with the runner who has been all along unfettered.

156. Mr. Ram Awadesh Singh, an intervener demonstrably explained that as unwatered seeds do not germinate, unprotected backward class citizens will wither away.

157. The above illustration and analogies would lead to a conclusion that there is an ocean of difference between a well advanced class and a backward class in a race of open competition in the matters of public employment and they, having been placed unequally, cannot be measured by the same yardstick. As repeatedly pointed out, it is only in order to make the unequals equals, this constitutional provision, namely, Clause (4) of Article 16 has been designed and purposely introduced providing some preferential treatment to the backward class. It is only in case of denial of such preferential treatment, the very concept of equality as enshrined in the Constitution, will get buried 50 fathoms deep.

158. A programme of reservation may sacrifice merit but does not in any way sacrifice competence because the beneficiaries under Article 16(4) have to possess the requisite basic qualifications and eligibility and have to compete among themselves though not with the mainstream candidates.

159. As Chinnappa Reddy, J in Vasanth Kumar has rightly observed, 'Always one hears the word 'efficiency' as if it is sacrosanct and the sanctorum has to be fiercely guarded. 'Efficiency' is not a mantra which is whispered by the Guru in the Sishya's ear.

160. In yet another context, in the same decision, the learned Judge at page 394 has firmly and irrefutably put the merit argument at rest stating thus:

The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis. There is no enough fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vulnerable people of our country are too obvious to be stated. And, what is merit? There is no merit in a system which brings about such consequences.

161. Be that as it may, the intelligence, merit, ability, competence, meritocracy, administrative efficiency and achievement cannot be measured by skin-pigmentation or by the surname of an individual indicating his caste.

162. In this regard, the observation of Subba Rao, J in Devadasan at page 706 may be recapitulated, which to some extent answers the doubt raised by a section of anti-reservation that reservation will result in deterioration in the standard of service. The said observation reads as follows:

If the provision deals with reservation - which I hold it does - I do not see how it will be bad because there will be some deterioration in the standard of service. It is inevitable in the nature of reservation that there will be lowering of standards to some extent; but on that account the provision cannot be said to be bad. Indeed, the State laid down the minimum qualifications and all the appointments were made from those who had the said qualifications. How far the efficiency of the administrations suffers by this provision is not for me to say, but it is for the State, which is certainly interested in the maintenance of standards of its administration.

Submission on the theory of past discrimination based on the decisions of the Supreme Court of United States

163. Based on certain American decisions, it has been urged that only that group or section of people suffering from the lingering effects of past discrimination can be classified as 'backward classes' and not others. This submission has to be mentioned for being simply rejected for more than one reason. Even today, the caste discrimination is very much prevalent in India particularly in the rural areas. Secondly, even among the Judges of the Supreme Court of United States, there is a division of opinion on the theory of lingering effects of past discrimination. Thirdly, this theory cannot be imported to the Indian conditions where the Hindu society even today is suffering from the firm grip of discrimination based on caste system. The vastness and richness of the materials unearthed by the various Commissions inclusive of States' Commissions unambiguously and pellucidly reveal that in our country, representation of the SEBCs in the services under the State is grossly inadequate when compared to the representation of the advanced class of citizens leave the complete absence of reservation for SEBCs in the Central Services. This inadequate representation is not confined to any specific section of the people, but all those who fall under the group of social backwardness whether they are Shudras of Hindu community or similarly situated other backward classes of people in other communities, namely, Muslims, Sikhs, Christians etc.

164. Drawing strength on the opinion of Powell, J in Regents of the University of California V. Allan Bakke 57 L Ed 2d 750, an argument has been advanced that Article 16(1) permits only preferences but not reservations. In the above Bakke's case, a white male who had been denied admission to the medical school at the University of California at Davis for two consecutive years, instituted an action for declaratory and injunctive relief against the Regents of the University in the Superior Court of Yolo County, California alleging the invalidity under the equal protection clause of the Fourteenth Amendment, a provision of the California Constitution, and the proscription in racial discrimination in any programme receiving federal financial assistance of the medical school's special admissions programme. The Supreme Court announced its decision amid confusion and controversy. There was no clear majority, but a three-way split namely four Judges took one view and four other Judges took a different view, leaving Justice Powell straddling the middle. In their joint opinion partially concurring and partially dissenting, Justices Brennan, White, Marshal and Blackmun took issue with Powell's conclusion that the Davis programme was unconstitutional and said, 'We cannot ... let color blindness become myopia which masks the reality that many 'created equal' have been treated within our lifetimes as inferior both by the law and by their fellow citizens.

165 Attention was also drawn to Defunis v. Charles Odegaurd 1974 (40) L.Ed. 2nd 164.

166. The analytical study of American cases shows that the American-style justification of positive discrimination is on the ground of utility whereas the Indian-style justification is on the ground of constitutional rights. Therefore, the decision in relation to a racial discrimination relating to an admission to the medical school cannot be of much assistance in the matter of identification of 'backward classes' falling under Article 16(4). The dicta in Bakke and Defunis is one akin to the principle covered under Article 15(4) and not under Article 16(1) or 16(4).

Whether Article 16(4) is an exception to Articles 16(1) and (2)?

167. Mr. Parasaran, the learned senior counsel, appearing on behalf of the Union of India articulated that Articles 16(4) and 335 are so worded as to give a wide latitude to the State in the matter of reservation and that Article 16(4) having non-obstante clause reading 'Nothing in this Article shall prevent the State from making any provision...' has an overriding effect on Article 16(2).

168. In support of the above argument based on the non-obstante clause, much reliance was placed on various decisions, namely, (1) Punjab Province v. Daulat Singh and Ors. 1942 S.C.R. 67; (2) Orient Paper and Industries Ltd. v. State of Orissa : AIR1991SC672 and 678; (3) In Re: Hatschek's Patents 1909 Chancery Division Vol. II 68 at 82 and 85; and (4) Hari Vishnu Kamath v. Syed Ahmed Ishaque and Ors. : [1955]1SCR1104 .

169. Yet another argument placing reliance on Triloki Nath's case (I) (supra) was advanced contending that Article 16(4) is an enabling provision conferring a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens. Placing reliance on the view expressed by Wanchoo, J (as the learned Chief Justice then was) in General Manager, Southern Railways v. Rangachari : (1970)IILLJ289SC it was further urged (hat Article 16(4) which is in the nature of an exception or proviso to Article 16(1) cannot nullify equality of opportunity guaranteed to all citizens by that article.

170. In my view, that Clause (4) of Article 16 is not an exception to Article 16(1) and (2) but it is an enabling provision and permissive in character over-riding Article 16(1) and (2); that it is a source of reservation for appointments or posts in the Services so far as the backward class of citizens is concerned and that under Clause (1) of Article 16 reservation for appointments or posts can be made to other sections of the society such as physically handicapped etc.

171. There is complete unanimity of judicial opinion of this Court that under Article 16(4) the State can make adequate provisions for reservations of appointments or posts in favour of any backward class of citizens, if in the opinion of the State such 'backward class' is not adequately represented in the State. In fact in B. Venkataramana v. State of Madras AIR 1951 SC 229 a seven Judges Bench of this Court held that 'reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional'. Not a single decision of this Court has cast slightest shadow of doubt on the constitutional validity of reservation. Therefore, in view of the above position of law, I am not inclined to embark upon an elaborate discussion on this question any further.

Whether Reservation under Article 16(4) can be made by Executive Order?

172. The next submission that the provision for reservation of appointments or posts under Article 16(4) can be made only by a legislation and not by an executive order is unsustainable. This contention as a matter of fact has already been answered in (1) Balaji (supra) and (2), Comptroller & Auditor General V. Mohan Lal Mehrotra : (1992)ILLJ335SC .

173. In passing, it may be stated that this Court while reversing the judgment of the Punjab and Haryana High Court in favour of the appellant (State) in State of Punjab V. Hira Lal and Ors. : [1971]3SCR267 upheld the reservation which was made not by a legislation but by an executive order. See also Mangal Singh v. Punjab State Police 0065/1968 .

174. Agreeing with the reasonings of Balaji, I hold that the provision for reservation in the 'Services under the State' under Article 16(4) can be made by an executive order.

whether the power conferred under Article 16(4) is coupled with duty?

175. Mr. K. Parasaran put forth an argument that the enabling power conferred under Article 16(4) is intended for the benefit of the 'backward classes of citizens' who in the opinion of the State are not adequately represented in the Services under the State and that the power is one coupled with a duty and, therefore, has to be exercised by the State for the benefit of those for whom it is intended. Reference was made to H.W.R. Wade Administrative Law V Edn. Pages 228 and 229, Halsbury's Laws of England IV Edn. Vol. 1 paras page 34 para 27 and page 35 para 29. He adds that the duty caused on the State is to be exercised in keeping with the directive principles laid down under Article 46 to promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes and to protect them from social injustice and all other forms of exploitation. In this connection, attention was drawn to a few decisions of this Court, namely, (1) Chief Controlling Revenue Authority V. Maharashtra Sugar Mills Ltd. : [1950]1SCR536 ; (2) Official Liquidator V. Dharti Dhan 964; (3) Delhi Administration v. I.K. Nangia : 1980CriLJ834 ; and (4) Jaganathan (supra).

Whether formation of opinion by State is subjective?

176. The expression 'm the opinion of the State' would mean the formation of opinion by the State which is purely a subjective process. It cannot be challenged in a Court on the ground of propriety, reasonableness and sufficiency though such an opinion is required to be formed on the subjective satisfaction of the Government whether the identified 'backward class of citizens' are adequately represented or not in the Services under the State. But for drawing such requisite satisfaction, the existence of circumstances relevant to the formation of opinion is a sine quo non. If the opinion suffers from the vice of non-application of mind or formulation of collateral grounds or beyond the scope of Statute, or irrelevant and extraneous material then that opinion is challengeable. See (1) Dr. N.B. Khare V. The State of Delhi : [1950]1SCR519 ;

(2) Govindji V. Municipal Corporation, Ahm 1957 Bom. 147;

(3) Virendra v. The State of Punjab and Anr. : [1958]1SCR308 ; (4) The Barium Chemicals Ltd. and Anr. v. The Company Law Board and Ors. 1966 SCR 311 Rohtas Industries v. S.D. Agarwal and Ors. : [1969]3SCR108 .

177. In the present case, nothing is shown that the opinion of the Government as regards the inadequacy of representation in the Services is vitiated on any of the grounds mentioned above.

Whether the policy of the Government can be subjected to judicial review?

178. The action of the Government in making provision for the reservation of appointments or posts in favour of any 'backward class of citizens' is M a matter of policy of the Government. What is best for the 'back-ward class' and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservation is a matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review or judicial interference except on the grounds which are well settled by a catena of decisions of this Court. Reference may be made to (1) Hindustan Zinc V. A.P. State Electricity Board : [1991]2SCR643 ; (2) Sitaram Sugars v. Union of India and Ors. : [1990]1SCR909 ; (3) D.C.M. V. S. Paramjit Singh : AIR1990SC2286 ; (4) Minerva Talkies V. State of Karnataka and Ors. 1988 Suppl. SCC 176; (5) State of Karnataka v. Ranganath Reddy : [1978]1SCR641 ; (6) Kerala State Electricity Board V. S.N. Govind Prabhu 1986 SCC (4); (7) Prag Ice Company V. Union of India and Ors. 1978 (2) SCC 459; (8) Saraswati Industries Syndicate Ltd. Union of India : [1975]1SCR956 ; (9) Murti Match Works V. Assistant Collector, Central Excise and Ors. : 1978(2)ELT429(SC) ; (10) T. Govindraja Mudaliar v. State of Tamil Nadu and Ors. : [1973]3SCR222 ; and (11) Narender Kumar V. Union of India and Ors. 1969 (2) SCR 375.

To what extent can the reservation be made?

179. The next baffling question relates to the permissible extent of reservation in appointments.

180. It was for the first time that this Court in Balaji has indicated broadly that the reservation should be less than 50% and the question how much less than 50% would depend on the relevant prevailing circumstances in each case. Though in Balaji, the issue in dispute related only to the reservation prescribed for admissions in the medical college from the educationally and socially backward classes, scheduled castes and scheduled tribes as being violative of Article 15(4), this Court after expressing its view that it should be less than 50% observed further that 'the provisions of Article 15(4) are similar to those of Article 16(4) ...Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4)...reservation made under Article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution.' This decision has gone further holding that the reservation of 68 % seats made in that case was offending Article 15(4) of the Constitution. To say in other words, Balaji has fixed that the maximum limit of reservation all put together should not exceed 50% and if it exceeds, it is nothing but a fraud on the Constitution. Even at the threshold, I may emphatically state that I am unable to agree with the proposition fixing the reservation for SEBCs at 50% as the maximum limit.

181. Mr. Jethmalani strongly articulated that the observation in Balaji that reservation under Article 16(4) should not be beyond 50% is only an obiter dicta since that question did not at all arise for consideration in that case. Therefore, according to him, this observation is not a law declared by the Supreme Court within the meaning of Article 141 of the Constitution. He continued to state that unfortunately some of the subsequent decisions have mistakenly held as if the question of permissible limit has been settled in Balaji while, in fact, the view expressed in it was an obiter dicta. According to him, the policy of reservation is in the nature of affirmative action, firstly to eliminate the past inhuman discrimination and secondly to ameliorate the sufferings and reverse the genetic damage so that the people belonging to 'backward class' can be uplifted. When it is the main objective of Clause (4) of Article 16 any limitation on reservation would defeat the very purpose of this Article falling under Fundamental Rights and, therefore, reservation if the circumstances so warrant can go even upto 100%.

182. This view of Mr. Jethmalani has been fully supported by Mr. Siva Subramaniam appearing on behalf of the State of Tamil Nadu who pointedly referred to the speech of the Chief Minister of Tamil Nadu made in the Chief Ministers' Conference held on 10th April 1992 and produced a copy of the printed speech of the Chief Minister, issued by the Government of Tamil Nadu as an annexure to the written submissions. It is seen from the said annexure that the Chief Minister has categorically emphasised the stand of the Government of Tamil Nadu stating that the total reservation for backward classes, scheduled castes and scheduled tribes is 69%; that it is but fair and proper that socially and educationally backward classes (alone) as a whole should be given at least 50% reservation for employment opportunities in Central Government services and its undertakings as well as for admission in educational institutions run by the Central Government. It has also been pointed out that in consonance with this avowed policy, the Tamil Nadu Legislative Assembly passed unanimously a resolution on 30.9.1991 urging the Government of India to adopt a policy of 50% reservation for the Backward Classes instead of 27% and to apply this reservation not only for employment opportunities in all Central Government departments and Public Sector Undertakings, but also for admission in all Educational Institutions run by the Central Government.

183. Mr. Rajiv Dhawan appearing in W.P. No. 1094/91 submits that the limits to the reservation in Article 16(4) cannot be fixed on percentage but it must be with the ulterior objective of achieving adequate representation for 'backward classes'.

184. I see much force in the above submissions and hold that any reservation in excess of 50% for 'backward classes' will not be violative of Articles 14 and/or 16 of the Constitution. But at the same time, I am of the view that such reservations made either under Article 16(4) or under Article 16(1) and (4) cannot be extended to the totality of 100%. In fact, my learned brother, P.B. Sawant, J in his separate judgment has also expressed a similar view that 'there is no legal infirmity in keeping the reservations under Clause (4) alone or under Clause (4) and Clause (1) of Article 16 together exceeding 50 per cent' though for other reasons the learned Judge has concluded that ordinarily the reservations kept under Article 16(1) and 16(4) together should not exceed 50% of the appointments in a cadre or service in any particular year, but for extraordinary reasons this percentage may be exceeded. My learned brother, B.P. Jeevan Reddy, J in his separate judgment has expressed his view that in given circumstances, some relaxation in the strict rule of reservation may become imperative and added that in doing so extreme caution is to be exercised and a special case made out.

185. As to what extent the proportion of reservation will be so excessive as to render it bad must depend upon adequacy of representation in a given case. Therefore, the decisions fixing the percentage of reservation only upto the maximum of 50% are unsustainable. The percentage of reservation at the maximum of 50% is neither based on scientific data nor on any established and agreed formula. In fact, Article 16(4) itself does not limit the power of the Government in making the reservation to any maximum percentage; but it depends upon the quantum of adequate representation required in the Services. In this context, it would be appropriate to recall some of the decisions of this Court, not agreeing with Balaji as regards the fixation of percentage of reservation.

186. The question of percentage of reservation was examined in Thomas wherein Fazal Ali, J not agreeing with Balaji has observed thus:.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 that the percentage of reservation should not exceed 50%. As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of Clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make in adequate representation adequate.

187. Krishna Iyer, J in the same decision has agreed with the above view of Fazal Ali, J stating that '... the arithmetical limit of 50% in any one year by some earlier rulings cannot perhaps be pressed too far.

188. Though Mathew, J did not specifically deal with this maximum limit of reservation, nevertheless the tenor of his judgment indicates that he did not favour 50% rule.

189. Chinnappa Reddy, J in Karamchari case : (1981)ILLJ209SC (supra) has expressed his view on the ceiling of reservation as follows:.There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty percent. There is no rigidity about the fifty percent rule which is only a convenient guideline laid down by Judges. Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future. Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in any one of the impugned orders and circulars....

190. Again in Vasanth Kumar, Chinnappa Reddy, J reiterates his view taken in Karamchari in the following words:

We must repeat here, what we have said earlier, that there is no scientific statistical data or evidence of expert administrators who have made any study of the problem to support the opinion that reservation in excess of 50 per cent may impair efficiency.

191. I fully share the above views of Fazal Ali, Krishna Iyer, Chinnappa Reddy, JJ holding that no maximum percentage of reservation can be justifiably fixed under Articles 15(4) and/ or 16(4) of the Constitution.

192. It should not be out of place to recall the observation of Hegde, J in Hira Lal observing,' The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review.... The length of the leap to be provided depends upon the gap to be covered.

(emphasis supplied)

193. Desai, J in Vasanth Kumar expressed his view that in dealing with the question of reservation in favour of Scheduled Castes, Scheduled Tribes as well as other SEBCs 'Judiciary retained its traditional blindfold on its eyes and thereby ignored perceived realities.

Whether the further arbitrary classification as 'poorer sections' from and out of the identified SEBCs is permissible under Article 16(4) after acceptance and approval of the list without reservation and whether such classification suffers from non-application of mind?

194. The most important pivotal and crucial issue that I would now like to ponder over relates to the intent of para 2 (i) of the OM dated 25th September 1991 whereunder it is declared that 'Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference will be given to the candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates.

(emphasis supplied)

195. To say in other words, the Government intends to prescribe an income ceiling for determination of 'poorer sections' of the SEBCs who will be eligible to avail of the preference of reservation of appointments or posts in the Services under the State. It is an admitted fact that the Government so far has not laid down any guideline or test for identifying and ascertaining the 'poorer sections' among the identified SEBCs.

196. The OM has specifically used the expression, 'poorer sections' but not 'weaker sections' as contemplated under Article 46 of the Constitution. Though the expressions 'poorer sections' and 'weaker sections' may connote in general 'the disadvantaged position of a section of the people' they do not convey one and the same meaning and they are not synonymous. When the OM deliberately uses the expression 'poorer sections', it has become incumbent to examine what that expression means and whether there can be any sub-classification as 'poorer' and 'non-poorer' among the same category of potential backward class of citizens on the anvil of economic criterion.

197. The word 'poor' lexically means 'having little or no money, goods or other means of support' (Webster's Encyclopedic Unabridged Dictionary) or ' 'lacking financial or other means of subsistence' (Collins English Dictionary).

198. The OM uses the expression 'poorer' in its comparative term for the word 'poor'. It is common knowledge that the superlative term for the word 'poor' is 'poorest'. The very usage of the word 'poorer' is in comparison with the positive word 'poor'. Therefore, it necessarily follows that the OM firstly considers all the identified SEBCs in general as belonging to 'poor sections' from and out of which the 'poorer sections' are to be culled out by applying a test to be yet formulated by the Government evidently on economic criterion or by application of poverty test based on the ceiling of income. After the segregation of 'poorer sections' of the SEBCs, the left out would be the 'poor sections'. By the use of the word 'poorer', the Government is super-imposing a relative poverty test for identifying and determining a preferential class among the identified SEBCs. It is stated that the preference will be given first to the 'poorer sections' and only in case there are unfilled vacancies, those vacancies will be filled by the left out SEBCs, namely, those other than the poorer sections. In other words, it means that all the identified SEBCs do not belong to affluent sections but to poor and poorer sections, that the expression 'poorer sections' denotes only the economically weaker sections of SEBCs compared with the remaining same category of SEBCs and that those, other than the 'poorer sections' although socially and educationally backward are economically better off compared with the 'poorer sections'. The view that all the identified SEBCs are considered as 'poor' or 'poorer' is fortified by the fact that there is an inbuilt explanation in the amended OM itself to the effect that those who do not fall within the category of 'poorer sections' also will be entitled for the benefit of reservation but of course subject to the availability of unfilled vacancies.

199. An argument was advanced that for identifying 'poorer sections', the 'means test' signifying an imposition of outer income limit should be applied and those who are above the cut off income limit should be excluded so that the better off sections of the SEBCs may be prevented from taking the benefit earmarked for the less fortunate brethren, and the only genuine and truly members of 'poorer sections' of SEBCs may avail the benefit of reservation. In support of this argument, an attempt has been made to draw strength on two decisions of this Court rendered in Jayashree and Vasanth Kumar.

200. Chief Justice Ray in Jayashree seems to have been inclined to take the view that reservation of seats in educational institutions should not be allowed to be enjoyed by the rich people suffering from the same communal disabilities.

201. Chinnappa Reddy, J in Vasanth Kumar recognises this 'means test' saying that 'an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserved it', with which view Venkataramiah, J (as the learned Chief Justice then was) has agreed.

202. Thus the above argument based on 'means test' though seems to be plausible at the first sight is, in my opinion, not well founded and must be rejected on the ground that the identified category of SEBCs, having common characteristics or attributes -namely the potential social backwardness cannot be bisected or further classified by applying the economic or poverty test.

203. A doubt has been created as to whether the word 'poorer' connotes economic status or social status or is to be understood in any other way.

204. The word 'poorer' when examined in the context in which it is deployed both syntactically and etymologically, in my view, may not convey any other meaning except relative poverty or comparative economic status. If any other meaning is imported which the Government evidently appears to have not contemplated, virtually one will be rewriting the second OM.

205. An order of a Constitution Bench dated 1st October 1991 clearly spells out that that Bench was of the view that 'poorer sections' are to be identified by the economic criterion. The relevant portion of the above Order reads as follows:

The matters are adjourned to 31st October 1991 when learned Additional Solicitor General will tell us how and when Government would be able to give the list of the economic criteria referred to in the notification of 25th September 1992.

(emphasis supplied)

206. The same view is reflected in a subsequent Order dated 4th December 1991 made by this nine-Judges Bench, the relevant part of which reads thus:

Learned Additional Solicitor General states that the Government definitely expects to be able to fix the economic criteria by January 28, 1992.... As far as the question of stay granted by us earlier is concerned, we see no reason to pass any order at this stage as the petitions are posted for hearing on January 28, 1992 and in view of the economic criterion not being yet determined and other relevant circumstances, no question of immediate implementation of the notification arises.

(emphasis supplied)

207. The above Orders of this Court support my view that the Government has to identify the 'poorer sections' only by the economic criteria or by the application of poverty test otherwise called 'means test'. It appears that this Court has all along been given to understand that 'poorer sections' will be tested by the Government on economic criterion.

208. The above view is further fortified by the very fact that the second OM providing 10% of the reservation 'for economically backward sections of the people not covered by any other scheme of the reservation' indicates that the Government has taken only the economic criteria in making the classification of the various sections of the people (emphasis supplied). Therefore, I proceed on the basis that the second OM identifies the 'poorer sections' only on the basis of economic status.

209. When the 'means test' is analysed in depth so as to explore its merits and demerits, one would come to an inevitable conclusion that it is not a decisive test but on the other hand it will serve as a protective umbrella for many to get into this segregated section by adopting all kinds of illegal and unethical methods. Further, this test will be totally unworkable and impracticable in the determination of 'getting somebody in and getting somebody out' from among the same identified SEBCs. If this 'means test' argument is accepted and put into action by scanning the identified SEBCs by applying a super-imposition test, the very object and purpose of reservation, intended for the socially backward class would reach only a culde sac and the identified SEBCs would be left in a maze. In my considered opinion, it will be a futile exercise for the courts to find out the reasons in support of the division between and among the group of SEBCs and make rule therefor, for multiple reasons, a few of which which I am enumerating hereunder.

(1) The division among the identified and ascertained SEBCs having common characteristics and attributes - the primary of which being the potential social backwardness, as 'poorer sections' and 'non-poorer sections' on the anvil of economic criterion or by application of a super-imposition test of relative poverty is impermissible as being opposed to the scope and intent of Article 16(4).

(2) If this apex Court puts its seal of approval to para 2 (i) of the second OM whereunder a section of the people under the label of 'poorer sections' is carved out from among the SEBCs, it becomes a law declared by this Court for the entire nation under Article 141 of the Constitution and is binding on all the Courts within the territory of India and that the decision of this Court on a constitutional question cannot be overridden except by the constitutionally recognised norms. When such is the legal position, the law so declared should be capable of being effectively implemented in its full measure, in the generality of cases and not confined in its applicability to some rare or freakish cases. The law should not be susceptible of being abused or misused and leave scope for manipulation which can remain undetected. If the law so declared by this Court is indecisive and leaves perceivable loopholes, by the aid of which one can defeat or circumvent or nullify that law by adopting an insidious, tricky, fraudulent and strategic device to suit one's purpose then that law will become otiose and remain as a dead letter.

210. I would like to indicate the various reasons in support of my opinion that this process of elimination or exclusion of a section of people from and out of the same category of SEBCs cannot be sustained leave apart the authority of the Government to take any decision and formulate its policy in its discretion or opinion provided that the policy is not violative of any constitutional or legal provisions or that discretion or opinion is not vitiated by non-application of mind, arbitrariness, formulation of collateral grounds or consideration of irrelevant and extraneous material etc.

a) If the annual gross income of a government servant derived from all his sources during a financial year is taken as a test for identifying the 'poorer sections', that test could be defeated by reducing the income below the ceiling limit by a Government servant voluntarily going on leave on loss of pay for few months during that financial year so that he could bring his annual income within the ceiling limit and claim the benefit of reservation meant for 'poorer sections'. Similarly, a person owning extensive land also may lay a portion of his land fallow in any particular year or dispose of a portion of his land so as to bring his agricultural income below the ceiling limit so that he may fall within the category of 'poorer sections'.

b) The fluctuating fortunes or misfortunes also will play an important role in determining whether one gets within the area of 'poorer sections' or gets out of it.

c) Take a case wherein there are two brothers belonging to the same family of 'backward class' of whom one is employed in Government service and another is privately employed or has chosen some other profession. The annual income of the Government employee if slightly exceeds the ceiling limit, his children will not fall within the category of 'poorer sections' whereas the other brother can deceitfully show his income within the ceiling limit so that his children can enjoy that benefit.

d) Among the pensioners also, the above anomaly will prevail as pointed out in Janaki Prasad.

e) Any member of SEBCs who is in Government job and is on the verge of his superannuation and whose income exceeds the ceiling limit, will go out of the purview of 'poorer sections' but in the next financial year, he may get into the 'poorer sections' if his total pensionary benefits fall within the ceiling limit.

f) A person who is within the definition of 'poorer sections' may suddenly go out of its purview by any intervening fortuitous circumstances such as getting a marital alliance in a rich family or by obtaining any wind-fall wealth.

g) If poverty test is made applicable for identifying the 'poorer sections' then in a given case wherein a person is socially oppressed and educationally backward but economically slightly advanced in A particular year, he will be deprived of getting the preferential treatment.

211. The above are only by way of illustrations, though this type can be multiplied, for the purpose of showing that a person can voluntarily reduce his income and thereby circumvent the declared law of this Court. In all the above illustrations, enumerated as (a) to (g), the chance of 'getting into or getting out of' the definition of 'poorer sections' will be like a see-saw depending upon the fluctuating fortunes or misfortunes.

(2) The income-test for ascertaining poverty may severally suffer from the vice of corruption and also encourage patronage and nepotism.

(3) When the Government has accepted and approved the lists of SEBCs, identified by the test of social backwardness, educational backwardness and economic backwardness which lists are annexed to the Report, there is no justification by dividing the SEBCs into two groups, thereby allowing one section to fully enjoy the benefits and another on a condition only if there are unfilled vacancies.

(4) The elimination of a section of SEBCs by putting an arbitrary and unnecessary barrier on the basis of economic criterion is absolutely unjustified. This process of elimination or exclusion of a section of SEBCs will be tantamount to pushing those persons into the arena of open competition along with the forward class if there are no unfilled vacancies out of the total 27% meant for SEBCs. This will cause an irretrievable injustice to all the non-poorer sections though they are also theoretically declared as SEBCs.

(5) The second OM providing a scanning test is neither feasible nor practicable. It will be perceptible and effectual only if the entire identified backward class enjoys the benefit of reservation.

(6) The proposed 'means test' is highly impressionistic test, the result of which is likely to be influenced by many uncertain and imponderable facts.

(7) It may theoretically sound well but in practice attempts may be made in a underhanded way to get round the problem.

212. What I have indicated above is only the tip of the iceberg and more of it is likely to surface at the time when any scanning process and super-imposition test are put into practice.

213. In this connection, I would like to mention the views of the Tamil Nadu Government as expressed by the Chief Minister of Tamil Nadu in the Chief Ministers' Conference held in New Delhi (already referred to) stating that the application of income limit on reservation will exclude those people whose income is above the 'cut-off limit and literally, it means that they will come under the open competition quota and if caste is not the sole criterion, income limit cannot also be the decisive and determining factor for social backwardness and that the exclusion of certain people from the benefits of reservation by the application of economic criterion will not bring the desired effect for the advancement and improvement of the backward classes who have suffered deprivation from the time immemorial.

214. Reference also made be made to Balaji wherein it has been ruled that backward classes cannot be further classified into backward and more backward and that such a sub-classification 'does not appear to be justified under Article 15(4)'. This view, in my opinion, can be equally applied even for sub-classification under Article 16(4).

215. Arguing with the above view of Balaji, I hold that the further sub-classification as 'poorer sections' out of the ascertained SEBCs after accepting that group in which the common thread of social backwardness runs through as an identifiable unit within the meaning of the expression 'backward class', is violative of Article 16(4).

216. Of course, in Vasanth Kumar, Chinnappa Reddy, J in his separate judgment has taken a slightly contrary view, holding that there can be classification for providing some reservation to the more backward classes compared to little more advanced backward classes. This view is expressed only by the learned Judge (Chinnappa Reddy, J) on which view other Judges of that Bench have not expressed any opinion. However, it appears that the learned Judge has not said that the entire reservation should go only to the more backward classes but only some percentage of reservation should be provided and earmarked exclusively for the more backward classes.

217. In the present case, the entire reservation of 27 per cent is given firstly to be enjoyed by the 'poorer sections' and only the unfilled vacancies, if any, can be availed of by others. As I have already held, the view expressed by the Constitution Bench in Balaji is more acceptable to me.

218. It may not be out of place to mention here that in Tamil Nadu, based on one of the recommendations of the First Backward Classes Commission constituted in 1969 - known as 'Sattanathan Commission' - the Government issued orders in GO Ms No. 1156, Social Welfare Department, dated 2nd July 1979, superimposing the income ceiling of Rs. 9,000/- per annum as additional criterion for the backward classes to be eligible for reservation for admission in educational institutions and recruitment to public services. This order was challenged before the High Court but the High Court by 2:1 upheld the G.O. However, the order provoked- a considerable volume of public criticism. After an All-party meet, the Government in GO Ms No. 72, Social Welfare Department dated 1st February 1980 revoked their orders and the position as it stood prior to 2nd July 1979 was restored. Simultaneously, by another GO Ms No. 73, Social Welfare Department dated 1st February 1980, the Government raised the percentage of reservation for backward classes from 31 per cent to 50 per cent commensurate with the population of the backward classes in the State. Both the GOs i.e. GO Ms No. 72 and 73 dated 1st February 1980 were challenged in the Supreme Court in Writ Petition Nos. 4995-4997 of 1980 along with W.P. No. 402 of 1981.

219. The Constitution Bench of this Court by its order dated 14th October 1980 directed the State Government to appoint another Commission to review the then existing enumeration and classification of backward classes and to take necessary steps for identifying the backward classes in the light of the report of the said Commission and that both the GOs 'shall lapse after January 1, 1985'. However, by order dated 5.5.1981, the above writ petitions were directed to be listed alongwith W.P. Nos. 1297-98/79 and 1497/79 (Vasanth Kumar). Thereafter, a number of CMPs in the writ petitions for extension of time for implementation of this Court's directions were filed. This Court periodically extended the time upto July 1985. A CMP for further extension of time was dismissed on 23.7.1985 by a three-Judges Bench of this Court since the judgment in Vasanth Kumar involving the same question was delivered on 8.5.1985. Vide (1) Orders of Supreme Court in W.P. Nos. 4995-97/ 198O and W.P. No. 402/1981, (2) Orders of High Court of Madras in W.P. Nos. 3069, 3292 and 3436/79 dated 20th August 1979 and (3) Paragraph 1.01 of Chapter I of the Report of the Tamil Nadu Second Backward Classes Commission (popularly known as Ambasankar Commission)

220. We have referred to the above facts for the purpose of showing that the fixation of ceiling limit on economic criterion was not successful and that for identifying the 'weaker sections', ceiling limit is not the proper test, once the backward class is identified and ascertained.

221. Further, it is clear for the aforementioned reasons that the Executive while making the division of sub-classification has not properly applied its mind to various factors, indicated above which may ultimately defeat the very purpose of the division or sub-classification. In that view, para 2(i) not only becomes constitutionally invalid but also suffers from the vice of non-application of mind and arbitrariness.

222. For the aforementioned reasons, I am of the firm view that the division made in the amended OM dividing a section of the people as 'poorer sections' and leaving the remaining as 'non-poorer sections' on economic criterion from and among the same unit of identified and ascertained SEBCs, having common characteristics the primary of which is the social backwardness as listed in the report of the Commission, is not permissible, and valid and such a division or sub-classification is liable to be struck down as being violative of Clause (4) of Article 16 of the Constitution.

223. A further submission has been made stating that the benefits of reservation are often snatched away or eaten up by top creamy layer of socially advanced backward class who consequent upon their social development no longer suffer from the vice of social backwardness and who are in no way handicapped and who by their high professional qualifications occupy upper echelons in the public services and therefore, the children of those socially advanced section of the people, termed as 'creamy layer' should be completely removed from the lists of 'Backward Classes' and they should not be allowed to compete with the children of socially underprivileged people and avail the quota of reservation. By way of illustration it is said that if a member of a designated backward class holds a high post by getting through the qualifying examinations of IAS, IPS, IPS or any other All India Service, there can be no justification in extending the benefit of reservation to their children, because the social status is well advanced and they no longer suffer from the grip of poverty.

224. On the same analogy, it has been urged that the children of other professionals such as Doctors, Engineers, Lawyers etc. etc. also should not be given the benefit of reservation, since in such cases, they are not socially handicapped.

225. No doubt the above argument on the face of it appears to be attractive and reasonable. But the question is whether those individuals belonging to any particular caste, community or group which satisfies the test of backward class should be segregated, picked up and thrown over night out of the arena of backward class. One should not lose sight of the fact that the reservation of appointments or posts in favour of 'any backward class of citizens' in the Central Government services have not yet been put in practice in spite of the impugned OMs. It is after 42 years since the advent of our Constitution, the Government is taking the first step to implement this scheme of reservation for OBCs under Article 16(4). In fact, some of the States have not even introduced policy of reservation in the matters of public employment in favour of OBCs.

226. In opposition, it is said that only a very minimal percentage of BCs have stepped into All India Civil Services or any other public services by competing in the mainstream along with the candidates of advanced classes despite the fact that their legs are fettered by social backwardness and hence it would be very uncharitable to suddenly deprive their children of the benefit of reservation under Article 16(4) merely on the ground that their parents have entered into Government services especially when those children are otherwise entitled to the preferential treatment by falling within the definition of 'backward class'. It is further stressed that those children so long as they are wearing the diaper of social backwardness should be given sufficient time till the Government realises on review that they are completely free from the shackles of social backwardness and have equated themselves to keep pace with the advanced classes. There are a few decisions of this Court which I have already referred to, holding the view that even if a few individuals in a particular caste, community or group are socially and educationally above the general average, neither that caste nor that community or group can be held as not being socially backward. (Vide Balaram).

227. In the counter affidavit dated 30th October 1990 filed by the Union of India sworn by the Additional Secretary to the Government of India in the Ministry of Welfare, the following averments with statistical figures are given:

Based on the replies furnished by 30 Central Ministries and Departments and 31 attached and subordinate offices and public sector undertakings under the administrative control of 14 Ministries (which may be treated as sufficiently representative of the total picture) the Commission arrived at the following figures:

Category of Total number Percentage Percentage Employees of employees of SC/ST of OBCs All classes 15,71,638 18.72 12.55 (Extracted from page 92 of First Part of Mandal Commission Report)

228. The above figures clearly show that the SEBCs are inadequately represented in the Services of the Government of India and that the SCs and STs in spite of reservation have not yet been able to secure representation commensurate with the percentage of reservation provided to them.

229. Meeting an almost similar argument that the 'creamy layers' are snatching away the benefits of reservation, Chinnappa Reddy, J observed in Vasanth Kumar to the following effect:

One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunes among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layers amongst them on the same principle of merit on which the non reserved seats are taken away by the top layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?

230. The above observation, in my view, is an apt reply to such a criticism with which I am in full agreement. To quote Krishna Iyer, J ''For every cause there is a martyr'. I am also reminded of an adage,' One swallow does not make the summer.

231. Reverting to the case on hand, the O.M. does not speak of any 'creamy layer test'. It cannot be said by any stretch of imagination that the Government was not aware of some few individuals having become both socially and educationally above the general average and entered in the All India Services or any other Civil Services. Despite the above fact, the Government has accepted the listed groups of SEBCs as annexed to the Report and it has not thought it prudent to eliminate those individuals. Therefore, in such circumstances, I have my own doubt whether the judicial supremacy can work in the broad area of social policy or in the great vortex of ideological and philosophical decisions directing the exclusion of any section of the people from the accepted list of OBCs on the mere ground that they are all 'creamy layers' which expression is to be tested with reference to various factors or make suggestions for exclusion of any section of the people who are otherwise entitled for the benefit of reservation in the decision of the Government so long that decision does not suffer from any constitutional infirmity.

232. Added to the above submission, it has been urged that some pseudo communities have smuggled into the backward classes and they should be removed from the list of OBCs, lest those communities would be eating away the major portion of the reservation which is meant only for the true and genuine backward classes. There cannot be any dispute that such pseudo communities should be weeded out from the list of backward classes but that exercise must be done only by the Government on proper verification.

233. The identification of the backward classes by the Mandal Commission is not with a seal of perpetual finality but on the other hand it is subjected to review ability by the Government. The Mandal Commission itself in paragraph 13.40 in Chapter XIII has suggested that 'the entire scheme should be reviewed after 20 years.' Mr. Jethmalani suggested that the list may be reviewed at the interval of 10 years. There are judicial pronouncements to the effect that the Government has got the right of review ability. There cannot be any controversy indeed there is none - that the Government which is certainly interested in the maintenance of standards of its administration, possesses and retains its sovereign authority to adopt general regulatory measures within the constitutional framework by reviewing any of its schemes or policies. The interval of the period at which the review is to be held is within the authority and discretion of the Government, but of course subject to the constitutional parameters and well settled principles of judicial review. Therefore, it is for the Government to review the lists at any point of time and take a decision for the exclusion of any pseudo community or caste smuggled into the backward class or for inclusion of any other community which in the opinion of the Government suffers from social backwardness.

234. It may be recalled that the petitioner herself in W.P. No. 930 of 1990 has stated, '...the Courts cannot sit as a super legislature to determine and decide the social issue as to who are socially and educationally backward

235. It will be appropriate to refer to an observation of the five-Judges Bench of this Court (which heard initially these matters) in its order dated 8th August 1991 stating:

The validity of the Mandal Commission Report as such is not in issue before us....

236. A three-Judges Bench of this Court comprising of Ranganath Mishra, K.N. Singh, M.H. Kania, JJ (as the learned Chief Justices then were) has observed in their order dated 21st September 1990 that the implementation of executive decisions is in the hands of the Government of the day but constitutional validity of such action is a matter for Court's examination.

237. Thereafter, a Constitution Bench of this Court by their order dated 1st October 1990 explained the earlier order stating 'Three out of us sitting as a Bench on the 21st September 1990 made an order after hearing parties wherein we had indicated that the decision to implement three aspects of the recommendations of the Mandal Commission was a political one and ordinarily the Court would not interfere with such a decision.

238. Therefore, when this Court is not called upon to lay a test or give any guideline as to who are all to be eliminated from the listed groups of the Report, there is no necessity to lay any test much less 'creamy layer test'. I find no grey area to be clarified and consequently hold that what one is not free to do directly cannot do it indirectly by adopting any means. Therefore, the argument of 'creamy layer' pales into insignificance.

239. Further I hold that all SEBCs brought in the lists of the Commission which have been accepted and approved by the Government should be given equal opportunity in availing the benefits of the 27 per cent reservation. In other words, the entire 27% of the vacancies in civil posts and services under the Government of India shall be reserved and extended to all the SEBCs.

240. In fact, the first OM dated 13th August 1990 does not make any division or sub-classification as in the amended OM. Para 2 (i) of the first OM reads,' 27% of the vacancies in civil posts and services in the Government of India shall be reserved for SEBC'. In reading para 2 (i) of the first OM in juxtaposition with para 2 (i) of the amended OM, no basic difference in the policies of the two Government is spelt out; in that both the impugned OMs have made 27% reservation in civil posts and services under the Government of India for SEBCs on the basis of the recommendations of the Second Backward Classes Commission (Mandal Report). The only difference between the two impugned OMs is that in the amended OM a division among the SEBCs is made as 'poorer sections' and others that the 'poorer sections' is firstly allowed to avail the benefit of reservation and that others to avail the benefit of reservation of only the unfilled vacancies. Therefore, by striking down para 2 (i) of the amended OM as unconstitutional, I hold that there is no legal impediment in implementing para 2 (i) of the first OM dated 13th August 1990 which has not been supersede, rescinded or repealed but 'deemed to have been amended.

241. Before parting with this aspect of the matter, I would like to express my view that the 'poorer sections' of the SEBCs may be provided with various kinds of concessions and facilities such as educational concessions, special coaching facilities, financial assistance, relaxation of upper age limit, increase of number of attempts etc. for government services with a view to give them equal opportunity to compete and keep pace with the advanced sections of the people.

Whether 10% reservation in favour of 'other economically backward section is permissible under Article 16?

242. Now I shall pass on to paragraph 2 (ii) of the amended OM which reveals that 10 per cent of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation.

243. This reservation of 10 per cent cannot be held to be constitutionally valid as concluded by my learned brother B.P. Jeewan Reddy, J for the reasons, mentioned in paragraph 115 of his judgment. I am in full agreement with his conclusion on this issue of 10% reservation.

Whether Article 16(4) contemplates reservation in the matter of promotion?

244. In Mohan Kumar Singhania V. Union of India : AIR1992SC1 , a three-Judges Bench of this Court to which I was a party has taken a view that once candidates even from reserved communities are allocated and appointed to a Service based on their ranks and performance and brought under the one and same stream of category, then they too have to be treated on par with all other selected candidates and there cannot be any question of preferential treatment at that stage on the ground that they belong to reserved community though they may be entitled for all other statutory benefits such as the relaxation of age, the reservation etc. Reservation referred to in that context is referable to the reservation at the initial stage or the entry point as could be gathered from that judgment.

245. It may be recalled, in this connection, the view expressed by Chief Justice Ray in Thomas that 'efficiency has been kept in view and not sacrificed''.

246. Hence, I share the view of my learned brother B.P. Jeevan Reddy, J holding that 'Article 16(4) does not permit provision for reservation in the matter of promotions and that this rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis' and the direction given by him that wherever reservations are provided in the matter of promotion such reservation may continue in operation for a period of five years from this day.

In Summation

1) Article 16(4) of the Constitution is neither an exception nor a proviso to Article 16(1). It is exhaustive of all the reservations that can be made in favour of backward class of citizens. It has an over-riding effect on Article 16(1) and (2).

2) No Reservation can be made under Article 16(4) for classes other than backward classes. But under Article 16(1), reservation can be made for classes, not covered by Article 16(4).

3) The expression, 'backward class of citizens' occurring in Article 16(4) is neither defined nor explained in the Constitution. However, the backward class or classes can certainly be identified in Hindu society with reference to castes along with other criteria such as traditional occupation, poverty, place of residence, lack of education etc. and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion.

4) In the process of identification of backward class of citizens under Article 16(4) among Hindus, caste is a primary criterion or a dominant factor though it is not the sole criterion.

5) Any provision under Article 16(4) is not necessarily to be made by the Parliament or Legislature. Such a provision could also be made by an Executive order.

6) The power conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward class for whom it is intended.

7) The provision for reservation of appointments or posts in favour of any backward class of citizens is a matter of policy of the Government, of course subject to the constitutional parameters and well settled principles of judicial review.

8) The expression 'poorer sections' mentioned in para 2 (i) of the amended Office Memorandum of 1991 denotes a division among SEBCs on economic criterion. Therefore, no division or sub-classification as 'poorer sections' and other backward class (non poorer sections) out of the identified SEBCs can be made by application of 'means test' based on economic criterion. Such a division in the same identified and ascertained unit consisting of SEBCs having common characteristics and attributes, the primary characteristic or attribute being the social backwardness is violative of Clause (4) of Article 16 of the Constitution. Hence, the division of the SEBCs as 'poorer section' and others, brought out in para 2(i) of the impugned amended Office Memorandum dated 25th September 1991 is constitutionally invalid and impermissible. Accordingly, para 2(i) of the said amended Office Memorandum is struck down.

9) No maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution for reservation of appointments or posts in favour of any backward class of citizens 'in the Services under the State'. The decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable.

10) As regards the reservation in the matter of promotion under Article 16(4), I am in agreement with conclusion No. (7) made in paragraph 121 in Part VII of the judgment of my learned brother. B.P. Jeevan Reddy, J.

11) I also agree with conclusion No. (8) of paragraph 121 of the judgment of my learned brother, B.P. Jeevan Reddy, J quo the exception to the rule of reservation to certain Services and posts.

12) The reservation of 10% of the vacancies in civil posts and Services in favour of other economically backward sections of the people who are not covered by any other scheme of the reservation as mentioned in para 2(ii) of the impugned amended Office Memorandum dated 25th September 1991 is constitutionally invalid and it is accordingly struck down. In this regard, I am also in agreement with conclusion No.(l 1) of paragraph 121 of the judgment of my learned brother, B.P. Jeevan Reddy, J.

13) No section of the SEBCs can be excluded on the ground of creamy layer till the Government - Central and State - takes a decision in this regard on a review on the recommendations of a Commission or a Committee to be appointed by the Government.

14) Para 2(i) and (ii) of the amended Office Memorandum dated 25th September 1991 for the reasons given in my judgment and the conclusions drawn above, are struck down as being violative of Article 16(4).

15) The impugned Office Memorandum dated 13th August 1990 is held valid and enforceable. So there is no legal impediment in immediately enforcing and implementing this first Office Memorandum of 1990.

16) In Writ Petition No. 1094 of 1991 (Sreenarayana Dharma Paripalana Yogam v. Union of India), there is a prayer (prayer 'b'), inter alia, for issuance of a writ of mandamus directing the respondent to implement the impugned unamended office memorandum dated 13th August 1990. In the light of my conclusions, striking down the amended office memorandum dated 25th September 1991, I direct the Union of India to immediately implement the unamended office memorandum dated 13th August 1990.

17) The Government of India and the State Governments have to create a permanent machinery either by way of a Commission or a Committee within a reasonable time for examining the requests of inclusion or exclusion of any caste, community or group of persons on the advice of such Commission or Committee, as the case may be, and also for examining the exclusion of any pseudo community if smuggled into the list of OBCs. The creation of such a machinery in the form of a Commission or Committee does not stand in the way of immediate implementation of the office memorandum dated 13.8.1990 and the purpose of creating such machinery is for future guidance.

18) I am also of the same view of my learned brother, B.P. Jeevan Reddy, J that it is not necessary to send the matters back to the Constitution Bench of five-Judges.

247. In the result, for the reasons mentioned in my judgment and the conclusions drawn in the summation, the writ petition No. 1094 of 1991 is partly allowed to the extent indicated above and all other Writ Petitions, Transferred Cases and Interlocutory Applications are disposed of accordingly. No costs.

Thommen, J. : [Dissenting]

248. The petitioners challenge O.M. No. 36012/31/9Q-Estt(SCT) dated 13th August, 1990 as amended by O.M. No. 36012/31/90-Estt(SCT) dated 25th September, 1991 providing in civil posts and services under the Government of India for reservation of 27% of the vacancies for the Socially and Educationally Backward Classes (SEBCs) and 10% of the vacancies for other economically backward sections of the people. The Office Memorandum dated 13th August, 1990, in so far as it is material, reads:.2(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.

(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment....

(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standard prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments' lists. A list of such castes/ communities is being issued separately.

(v) ...

The amended Office Memorandum dated 25th September, 1991 provides:.2(i) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates.

(ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation.

(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.

The reservation postulated in these orders for the socially and educationally backward classes and also for the economically backward sections of the people in the Central Government services to the extent of 27% and 10% respectively is in addition to the reservation already made for the Scheduled Castes and the Scheduled Tribes to the extent of 22.5%.

249. These orders are made pursuant to the Report submitted by the Backward Classes Commission appointed by the President of India under Article 340 of the Constitution. This Report is generally known by the name of the Chairman of the Commission, the Late B.P. Mandal. The petitioners submit that the Report leading to the impugned Government Orders is not based on any scientific or objective study of backwardness in the country, and any attempt to make reservation on the basis of the data supplied in the Report is irrational, unconstitutional and invalid. They say that the Report is conceived in caste prejudices and motivated by caste hatred. The Report does not address itself to a proper identification of true backwardness for the redressal of which the Constitution permits reservation by quota for the backward classes of citizens to the exclusion of all other persons. On the other hand, the sole criterion on the basis of which backwardness is purportedly identified is caste and nothing but caste. Any order resulting in reservation or other affirmative action on the basis of the wrong conclusions drawn by the Commission is bound to be the very antithesis of equality.

250. The respondents, supporting the impugned Government orders, contend that the Constitution guarantees liberty, equality and fraternity for all classes of people irrespective of their religion, community, caste, occupation, residence or the like. Every citizen is entitled to equal opportunities. For centuries, large sections of our countrymen have been discriminated against on account of their birth. As a result of such inequity, they have been steeped in poverty, ignorance and squalor. To alleviate their misery and elevate them to positions of equality with the more fortunate, affluent and enlightened sections of our countrymen, the Founding Fathers of the Constitution made special provisions for their uplift. These provisions are meant to protect the truly backward people of this country, namely, members of the Scheduled Castes and the Scheduled Tribes and other backward classes. They contend that the Mandal Report is a scientific and serious study rationally addressed to the problem of backwardness by identifying it where it is most acutely felt and loudly present, namely, amongst the lowest of the lowly citizens of this country. Those are the members of the low castes as traditionally recognised and identified by the State and Central Governments. The various classes of people belonging to such castes are identified as socially, educationally and economically backward and it is in respect of those people that the Government have made the impugned reservations.

251. The 'indicators' or 'criteria' adopted in the Mandal Report are broadly grouped as social, educational and economic on the basis of castes/ classes. The Commission has identified classes with castes and backwardness with particular castes. Castes which are socially, educationally and economically backward are characterised as backward classes entitled to the benefit of reservation. Persons are grouped on the basis of caste either because they are members of it by reason of their being Hindus or because they were members of it in the past prior to their conversion to other religions. Identification of backwardness is thus made with reference to the present or past caste affiliations of the people. The Report says:

12.4. In fact, caste being the basic unit of social organisation of Hindu Society, castes are the only readily and clearly 'recognisable and persistent collectivities .

12.6. ...the Commission has also applied some other tests like stigmas of low occupation, criminality, nomadism, beggary and untouchability to identify social backwardness. Inadequate representation in public services was taken as another important test'.

In regard to non-Hindus, the Report says:

12.11 There is no doubt that social and educational backwardness among non-Hindu communities is more or less of the same order as among Hindu communities. Though caste system is peculiar to Hindu society yet, in actual practice, it also pervades the non-Hindu communities in India in varying degrees....even after conversion, the ex-Hindus carried with them their deeply ingrained ideas of social hierarchy and stratification....

12.14...even after conversion, the lower caste converts were continued to be treated as Harijans by all sections of the society...'.

12.18. ...the Commission has evolved the following rough and ready criteria for identifying non-Hindu OBCs:

(i) All untouchables converted to any non-Hindu religion; and

(ii) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. (Examples : Dhobi, Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc.).

The Report has thus treated all persons who belong, or who had once belonged, to what had been regarded as untouchable or other traditionally backward castes or communities or who belong to certain low occupations as socially, educationally and economically backward.

252. The particulars of the Mandal Report and other material relied on by the Government in making the impugned orders do not directly arise for our consideration at this juncture as this Bench has been constituted to examine the concept of equality of opportunity in matters of public employment, as enshrined in Article 16 and other provisions of the Constitution, 'and settle the legal position relating to reservation' and thus lay down the guidelines by which the validity and the reasonableness of Government Orders on reservation can be tested in appropriate cases.

The Concept of Reservation:

253. The fundamental question is, what is the raison d'etre of reservation and what are its limits. The Constitution permits the State to adopt such affirmative action as it deems necessary to uplift the backward classes of citizens to levels of equality with the rest of our countrymen. The backward classes of citizens have been in the past denied access to Government services on account of their inability to compete effectively in open selections on the basis of merits. It is, therefore, open to the Government to reserve a certain number of seats in places of learning and public services in favour of the Scheduled Castes and the Scheduled Tribes and other backward classes to the exclusion of all others, irrespective of merits. The impugned Government orders have made reservation by setting aside quotas in Government services exclusively for backward classes of candidates.

254. Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr. Ambedkar emphatically declared that reservation should be confined to 'a minority of seats', lest the very concept of equality should be destroyed. In view of its great importance, the full text of his speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now read a few passages from it. Dr. Ambedkar stated:.firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a proper look-in' so to say into the administration.... Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity.... Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation...we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State....

Constituent Assembly Debates, Vol. 7, pp. 701-702 (1948-49).

(emphasis supplied)

These words embody the raison d'etre of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, in so far as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal.

255. What the Constitution permits is the adoption of suitable and appropriate remedial measures to correct the continuing evil effects of prior discrimination. Over-inclusiveness in such measures by unduly widening the net of reservation to unjustifiably protect the ill deserved at the expense of the others would result in invidious discrimination offending the Constitutional objective. Benign classification for affirmative action by reservation must stay strictly within the narrow bounds of remedial actions. Any such programme must be consistent with the fundamental objective of equality. Classes of people saddled with disabilities rooted in history of purposeful unequal treatment and consequently relegated to social, educational, economic and political powerlessness particularly qualify to demand the extraordinary and special protection of reservation.

256. Reservation is meant to remedy the handicap of prior discrimination impeding the access of classes of people to public administration. It is for the State to determine whether the evil effects of inequities stemming from prior discrimination against classes of people have resulted in their being reduced to positions of backwardness and consequent under representation in public administration. Reservation is a remedy or a cure for the ill effects of historical discrimination.

257. While affirmative action programmes by preferential treatment short of reservation in favour of disadvantaged classes of citizens may be justified as benign redressal measures based on valid classification, the more positive affirmative action adopting reservation by quota or other 'set aside' measures or goals in favour of certain classes of citizens to the exclusion of others must be narrowly tailored and strictly addressed to the problem which is sought to be remedied by the Constitution. Any such action by the State must necessarily be subjected to periodic administrative review by specially constituted authorities so as to guarantee that such policies and actions are applied correctly and strictly to permitted constitutional ends.

258. Reservation is not an end in itself. It is a means to achieve equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objective in view. Reservation must not outlast its constitutional object, and must not allow a vested interest to develop and perpetuate itself. There will be no need for reservation or preferential treatment once equality is achieved. Achievement and preservation of equality for all classes of people, irrespective of their birth, creed, faith or language is one of the noble ends to which the Constitution is dedicated. Every reservation founded on benign discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient passage to that end. It is temporary in concept, limited in duration, conditional in application and specific in object. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality is destructive of liberty and fraternity and all the basic values enshrined in the Constitution. A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all.

259. The makers of the Constitution were fully conscious of the unfortunate position of the Scheduled Castes and the Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch. These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim.

260. The victims of prior injustice are the special favourites of the laws. Their plight is a shameful scar on the national conscience. It is a constitutional command that prompt measures are adopted by the State for the promotion of these unfortunate classes of people specially to positions of comparative enlightenment, culture, knowledge, influence, affluence and prestige so as to place them on levels of equality with the more fortunate of our countrymen.

261. Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in making special provisions for the chosen classes of people for special constitutional protection, so that 'persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us'; Per Justice T. Marshall, Regents of the University of California v. Allan Bakke 438 US 265, 57 L Ed. 2d 750. See also H. Earl Fully love v. Philip M. Klutznick 448 US 448, 65 L Ed. 2d 902; Metro Broadcasting, Inc. v. Federal Communications Commission, 58 I.W. 5053 (Decided on 27.6.1990); Oliver Brown v. Board of Education of Topeka 347 US 483, 98 L Ed. 2d 873; City of Richmond v. J.A. Croson Co., 488 US 469; Wendy Wygant v. Jackson Board of Education, 476 US 267, 90 L Ed. 2d 260.

Reservation under the Constitution:

262. The Constitution seeks to secure to all its citizens Justice, Liberty, Equality and Fraternity. These are the basic pillars on which the grand concept of India as a Sovereign Socialist Secular Democratic Republic rests. This splendour that is India rests on these magnificent concepts, each of which, supporting the other, upholds the dignity and freedom of the individual and secures the integrity and unity of the nation.

263. Equality is one of the magnificent cornerstones of Indian democracy: Smt. Indira Nehru Gandhi v. Shri Raj Narain : [1976]2SCR347 ; Minerva Mills Ltd. and Ors. v. Union of India and Ors. : [1981]1SCR206 , 241; Waman Rao and Ors. v. Union of India and Ors. : [1981]2SCR1 . Articles 14, 15 and 16 embody facets of the many-sided grandeur of equality: The General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC ; State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC , Article 14 prohibits the State from denying to any person within the territory of India equality before the law or the equal protection of the laws. All persons in like circumstances must be treated equally. Equality is between equals. It is parity of treatment under parity of conditions. The Constitution permits valid classification founded on an intelligible differentia distinguishing persons or things grouped together from others left out of the group. And such differentia must have a rational relation to the object sought to be achieved by the law: State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC . See also Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. : [1959]1SCR279 .

264. Any State action distinguishing classes of persons is liable to be condemned as invidious and unconstitutional unless justified as a benign classification rationally addressed to the legitimate aim of qualitative and relative equality by means of affirmative action programmes of protective measures with a view to uplifting identified disadvantaged groups. All such measures must bear a reasonable proportion between their aim and the means adopted and must terminate on accomplishment of their object. Any legitimate affirmative action rationally and reasonably administered is an aid to the attainment of equality. In the words of Judge Tanaka of the International Court of Justice:.The Principle is that what is equal is to be treated equally and what is different is to be treated differently, namely proportionately to the factual difference. This is what was indicated by Aristotle as justitia commutative and justitia distributiva''..the principle of equality before the law does not mean the absolute equality, namely equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal''..To treat unequal matters differently according to their inequality is not only permitted but required....

South West Africa Cases (Second Phase), ICJ Rep. p. 6, 305-6.

265. While Article 14 prohibits the State from denying equality to any person, Articles 15 and 16 are specially concerned with citizens. Article 15(1) prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (4) of Article 15 provides that despite the prohibition contained in Article 29(2) against denial of admission to any citizen into any educational institution maintained or aided by the State on grounds only of religion, race, caste, language or any of them, the State is nevertheless free to make 'any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes'.

266. These provisions of Article 15 have been construed by this Court in a number of decisions. It is no longer in doubt that, in order to receive the protection of Clause (4), the classes of people in favour of whom special provisions are made should necessarily be both socially and educationally backward (and not either socially or educationally backward) or should have been notified by the President as the Scheduled Castes or the Scheduled Tribes in terms of Article 341 or 342. M.R. Balaji and Ors. v. State of Mysore, 1963 Supp. (1) SCR 439.

267. Apart from the Scheduled Castes and the Scheduled Tribes to whom the special provisions, once notified by the President under Articles 341 and 342, undoubtedly apply, the other 'backward classes' of citizens to whom the special provisions can be extended are not merely backward but are socially and educationally so backward as to be comparable to the Scheduled Castes and the Scheduled Tribes. As stated by this Court in M.R. Balaji &. Ors. v. State of Mysore (1963) Supp. 1 SCR 439:..the Backward Classes for whose improvement special provision is contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes.

See also Kumari K.S. Jayasree and Anr. v. State of Kerala and Anr. : [1977]1SCR194 ; Janki Prasad Parimoo and Ors. v. State of Jammu & Kashmir and Ors. : [1973]3SCR236 ; State of Uttar Pradesh v. Pradip Tandon and Ors. : [1975]2SCR761 ; State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC ; State of Andhra Pradesh and Anr. v. P. Sagar : [1968]3SCR595 ; K.C. Vasanth Kumar and Anr. v. State of Karnataka, (1985) Suppl. 1 SCR 352.

268. In the Constituent Assembly during the discussions on draft Article 10 (Article 16), several members belonging to the Scheduled Castes or the Scheduled Tribes expressed serious apprehension that the expression 'backward' was not precise and large sections of people who did not belong to the Scheduled Castes or the Scheduled Tribes were likely to claim the benefit of reservation at the expense of the truly backward classes of people. They sought clarification that the expression 'backward' applied only to the Scheduled Castes and the Scheduled Tribes. (See B. Shiva Rao, The Framing of India's Constitution -A Study, (1968) pp. 198-199). K.M. Munshi, in his reply to this criticism, pointed out:.What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State - highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several Provinces, we want to see that backward classes, classes who are rectify backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and the word 'backward class' was the best possible term. When it is read with Article 301 it is perfectly clear that the word 'backward' signifies that class of people - does not matter whether you call them untouchables ortouchable, belonging to this community or that,- a class of people who are so backward that special protection is required in the services and I see no reason why any member should be apprehensive of regard to the word 'backward'.

(emphasis supplied)

Constituent Assembly Debates, Vol. 7, (1948-49), p.697

Dr. Ambedkar, in his general reply to the debate on the point, stated thus:..If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain...

(emphasis supplied)

Constituent Assembly Debates, Vol. 7, (1948-49), p. 702.

269. The President of India issued the Constitution (Scheduled Castes) Order, 1950 relating to the States, and the Constitution (Scheduled Castes) Union Territories Order, 1951 relating to the Union Territories. Para (2) of the 1950 Order speaks of 'castes, races or tribes which are to be deemed Scheduled Castes in the territories of the States mentioned in the Order''. Para (3) of the Order (as amended by Act 108 of 1976 w.e.f. 27.7.1977) provides ' 'notwithstanding anything contained in para (2), no person professing a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of the Scheduled Castes'. See Manual of Election Law, Vol. I (1991). p. 141. The 1951 Order relating to the Union Territories, however, regards only persons professing Hindu or Sikh religion as members of the Scheduled Caste, and does not include those professing Buddhist or any other religion.

270. The 1950 Order of the President (as amended) shows that in the territories of the States mentioned in the Order no person who is not a Hindu or a Sikh or a Buddhist can be regarded as a member of the Scheduled Castes. Article 15(4) speaks of 'socially and educationally backward classes of citizens' and 'the Scheduled Castes and the Scheduled Tribes' while Article 16(4) speaks only of 'any backward class of citizens'. The 'backward class' mentioned in Article 16(4) is a synonym for the classes mentioned in Article 15(4); M.R. Balaji (supra); Janki Prasad Parimoo and Ors. (supra). These two provisions read with the President's Order of 1950 (as amended in 1976) show that the benefit of Article 15(4) and Article 16(4) extends to the Scheduled Castes (which expression is confined to those professing the Hindu, the Sikh or the Buddhist religion) and the Scheduled Tribes as well as the backward classes of citizens who must necessarily be such backward classes of citizens who would have, but for their not professing the Hindu, the Sikh or the Buddhist religion, qualified to be notified as members of the Scheduled Castes. This means, all those depressed classes of citizens who suffered the odium and isolation of untouchability prior to their conversion to other religions and whose backwardness continued despite their conversion come within the expression 'backward classes of citizens' in Articles 15(4) and 16(4). Untouchability is a humiliating and shameful malady caused by deep-rooted prejudice which does not disappear with the change of faith. To say that it does would imply that faith is the ultimate cause of untouchability. This is, of course, not true. If backwardness caused by historical discrimination and its consequential disadvantages are the reasons for reservation, the Constitution mandates that all backward classes of citizens, who are the victims of the continuing ill effects of prior discrimination, whatever be their faith or religion, or whether or not they profess any religion, receive the same benefits which are accorded to the Scheduled Castes and the Scheduled Tribes. Backward class is composed of persons whose backwardness is in degree and nature comparable to that of the Scheduled Castes and the Scheduled Tribes, whatever be their religion. There can be no doubt about the identity of the Scheduled Castes and the Scheduled Tribes. Nor can there be any doubt about the identity of backward classes other than the Scheduled Castes and the Scheduled Tribes, if this identifying characteristic, bearing the stamp of prior discrimination and its continuing ill effects, is borne in mind. M.R. Balaji and Ors. v. State of Mysore (1963) Supp. 1 SCR 439; State of Uttar Pradesh v. Pradip Tandon and Ors. : [1975]2SCR761 ; Janki Prasad Parimoo and Ors. v. State of Jammu & Kashmir and Ors. : [1973]3SCR236 .

271. What is sought to be identified is not caste, religion and the like, but social and educational backwardness, generally manifested by disabilities such as illiteracy, humiliating isolation, poverty, physical and mental degeneration, incurable diseases, etc. Living in abject poverty and squalor, engaged in demeaning occupations to keep body and soul together, and bereft of sanitation, medical aid and other facilities, these unfortunate classes of citizens bearing the badges of historical discrimination and naked exploitation are generally traceable in the midst of the lowest of the low classes euphemistically described as Harijans and in fact treated as untouchables. To deny them the constitutional protection of reservation solely by reason of change of faith or religion is to endanger the very concept of secularism and the raison d'etre of reservation.

272. No class of citizens can be classified as backward solely by reason of religion, race, caste, sex, descent, place of birth, residence or any of them. But any one or all of these factors mentioned in Article 15(1) or Article 16(2) can be taken into account along with other relevant factors in identifying classes of citizens who are socially and educationally backward. What is significant is that such identification should not be made solely with reference to the criteria specified in Article 15(1) or Article 16(2), but with reference to the social and educational backwardness of classes of citizens. Referring to the words 'socially and educationally backward classes of citizens' appearing in Article 15(4), this Court stated in State of Uttar Pradesh v. Pradip Tandon and Ors. : [1975]2SCR761 :

The expression 'classes of citizens' indicates a homogeneous section of the people who are grouped together because of certain likeliness and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens.

It may, however, be true that backwardness is associated specially with people of a particular religion or race or caste or place of birth or residence or any other category mentioned in Article 15(1) or Article 16(2). In that event, any one or more of such criteria, along with other relevant factors, may be taken into consideration to reach the conclusion as to social and educational backwardness. Hard and primitive living conditions in remote and inaccessible areas, where the inhabitants have neither the means of livelihood nor facilities for education, health service or other civic amenities, are some such relevant criteria. Janki Prasad Parimoo and Ors. v. State of Jammu & Kashmir and Ors. : [1973]3SCR236 ; State of Andhra Pradesh and Anr. v. P. Sagar : [1968]3SCR595 .

273. The city slum dwellers, the inhabitants of the pavements, afflicted and disfigured in many cases by diseases like leprosy, caught in the vicious grip of grinding penury, and making a meagre living by begging besides the towering mansions of affluence, transcend all barriers of religion, caste, race, etc. in their degradation, suffering and humiliation. They are the living monument of backwardness and a shameful reminder of our national indifference, a cruel betrayal of what the preamble to the Constitution proclaims. No matter what caste or religion they may claim, their present plight of animal like existence, living on crumbs picked from garbage cans or coins flung from moving cars - a common painful sight in our metropolis - entitles them to every kind of affirmative action to redeem themselves from the iniquities of past and continuing discrimination. Rehabilitation and resettlement of these unfortunate victims of societal indifference and Governmental neglect and appropriate and urgent measures for State aided health care, education and special technical training for their progeny with a view to their employment in public services are the primary responsibility of a welfare State. These are the classes of people specially chosen by the law for prompt and effective affirmative action, not by reason of their caste or religion, but solely by reason of their backwardness in tracing which any relevant criterion is a useful tool.

274. In identifying backwardness, caste, religion, residence etc. are of course relevant factors, but none of them is a dominant or much less an indispensable factor. What is of ultimate relevance is the social and educational backwardness of a class of citizens, whatever be their caste, religion, etc.

275. Identification of the backward classes for the purpose of reservation must be with reference to their social and educational backwardness resulting from the continuing ill effects of prior discrimination or exploitation; and not solely with reference to any one or more of the prohibited criteria mentioned in Article 15(1).or Article 16(2), although any one or more of such criteria may have been the ultimate cause of such discrimination or V exploitation and the resultant poverty and backwardness. As stated by this Court in R. Chitralekha and Anr. v. State of Mysore and Ors. : [1964]6SCR368 :.the expression 'classes' is not synonymous with castes....caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.

276. What is sought to be identified for the purpose of Article 15(4) or Article 16(4) is a socially and educationally backward class of citizens. A class means 'a homogeneous section of the people grouped together because of certain likeliness or common traits, and who are identifiable by some common attributes'. Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. (1969) 1 SCR 103. They must be a class of people held together by the common link of backwardness and consequential disabilities. What binds them together is their social and educational backwardness, and not any one of the prohibited factors like religion, race or caste. What chains them, what incapacitates them, what distinguishes them , what qualifies them for favoured treatment of the law is their backwardness: their badges of poverty, disease, misery, ignorance and humiliation. It is conceivable that the entire caste is a backward class. In that event, they form a class of people for the special protection of Articles 15(4) and 16(4), not by reason of their caste, which is merely incidental, but by reason of their social and educational backwardness which is identified to be the result of prior or continuing discrimination and its ill effects and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. It is also conceivable that a class of people may be identified as backward without regard to their caste, provided backwardness of the nature and degree mentioned above binds them as a class. M.R. Balaji (supra) at pp. 458, 474; Minor P. Rajendran v. State of Madras and Ors. : [1968]2SCR786 ; State of Andhra. Pradesh and Anr. v. P. Sagar, : [1968]3SCR595 ; A. Peeriakaruppan, etc. v. State of Tamil Nadu and Ors. : [1971]2SCR430 ; State of Andhra Pradesh and Ors. v. U.S.V. Balram Etc., : [1972]3SCR247 Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. (1969) 1 SCR 103; State of Uttar Pradesh v. Pradip Tandon and Ors. : [1975]2SCR761 ; Kumari K.S. Jayasree and Anr. v. State of Kerala and Anr. : [1977]1SCR194 ; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. : (1981)ILLJ209SC ; R. Chitralekha and Anr. v. State of Mysore and Ors. : [1964]6SCR368 ;

277. Historically, backwardness has been the curse of people most of whom are characterised as the Scheduled Castes and the Scheduled Tribes. These are not castes as such, but classes of people composed of castes, races or tribes or tribal communities or parts or groups thereof and classified as such by means of presidential notifications owing to their extreme backwardness and other disadvantages (see Articles 341 and 342). State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC ; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. : (1981)ILLJ209SC . There are many other persons falling outside these groups, but comparable to them in their backwardness.

278. Any identification made for the purpose of Article 15 or Article 16 solely with reference to caste or religion, and without regard to the real issue of backwardness, will be an impermissible classification resulting in invidious reverse discrimination. The fact that identification of backwardness may involve a reference to religion, race, caste, occupation, place of residence or the like in respect of classes of people does not mean that any one of these factors is the sole or the dominant or the indispensable criterion. Backwardness may be the result of a combination of two or more of these factOrs. Persons of a particular place or occupation may have been enslaved as bonded labourers, or otherwise held in serfdom and exploited and discriminated against, and may have over a period of time degenerated to such social and educational backwardness as to qualify for the special protection of the Constitution. No matter to what caste or community or religion they belonged or from what place they came, their present plight stemming from prior inequities and continuing over a period of time and thus placing them in a state of total helplessness qualifies them for the special protection of reservation.

279. Historically, backwardness, as stated above, has been most acute at the lowest levels of our society and it has been invariably identified with low castes and demeaning occupations. But if, as a matter of fact, classes of citizens of higher castes have suffered continuously by reason of discrimination or exploitation by persons having authority and power over them, and have consequently been reduced to poverty, ignorance and isolation resulting in social and educational backwardness, whatever be the caste of the exploiters or of the victims, the constitutional protection has to be extended to such classes of victims. They must be helped out of their present plight resulting from prior or continuing discrimination or exploitation. Proof of their backwardness is not in their caste or religion, but in their poverty, ignorance and consequential disabilities.

280. It is generally a combination of factors such as low birth and demeaning occupation, or lack of any occupation, that has historically subjected classes of people to invidious discrimination and humiliating isolation and consequential poverty and social and educational backwardness. These are questions of fact which must be ascertained before the qualifying backwardness is identified. To disregard any one of these factors, particularly the most compelling reality of Indian life originating in low castes and demeaning occupations generally associated with them, such as that of scavenger, sweeper, fisherman, dhobi, barber and the like, and resulting in abject poverty, is to ignore the relevant criteria in identifying backwardness warranting reservation. What is sought to be identified for the purpose of reservation is not caste or religion, but poverty and backwardness caused by historical discrimination and its continuing evil effects. Caste may be a guide in this search, just as occupation or residence may be a guide, but what is sought to be identified is none but backwardness stemming from historical discrimination. If caste is more often than not a guide in the search for backwardness and if the lowest of the low castes has for historical reasons become the indicium of backwardness of the kind attracting reservation, caste in the absence of any better guide is a factor to be taken into account along with other factors such as poverty, illiteracy, physical and mental disabilities and other diseases caused by malnutrition, unhygienic conditions and the like. What the Constitution prohibits is not caste or non-discriminatory and inoffensive customs and practices based on castes; or ameliorative measures to uplift the downtrodden poverty stricken members of low castes; what it prohibits is exclusionary discrimination based solely on caste or any other criterion enumerated in Article 15(1) or Article 16(2). Any one or all of such criteria along with any other relevant criterion, such as poverty, illiteracy, disease, etc. may be legitimately used to identify backwardness for the purpose of reservation.

281. To contend that caste, and caste alone, is the criterion for identification of backwardness is to disregard the innumerable reasons for backwardness. At the same time, to ignore caste as a factor in identifying backwardness for the purpose of reservation is to shut one's eyes to the realities and ignore the cause of injustice from which large sections of people in this country have for generations suffered and still suffer, namely, naked exploitation and discrimination by those in positions of power and affluence. The realities of life in India militate against total exclusion of consideration based on caste or total concentration on caste in identifying backwardness caused by past inequities.

282. The Constitution is neither caste-blind nor caste-prejudiced nor caste-overcharged, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. India is not a nation of castes but of people with roots in divergent castes. What the Constitution seeks to identify is not the backward caste, but the backward class of citizens who may in many cases be partly or in some cases predominantly or even solely identified with particular castes. See Minor P. Rajendran v. State of Madras and Ors. : [1968]2SCR786 , 790.

283. The question is not whether the Constitution is caste-blind or caste-prejudiced; the question really is who are the backward classes of citizens intended to be protected by reservation under Article 15 or Article 16. If reservation is limited solely to the Scheduled Castes and the Scheduled Tribes and other comparably backward classes of citizens, as it must be under the Constitution, then the Harijans, the Girijans, the Adivasis, the Dalits, and other like backward classes of citizens, once known as the 'untouchables' or the 'outcastes' or the 'depressed classes' by reason of their 'low' birth and ' 'demeaning'' occupation, or any other class of citizens afflicted by like degree of degeneration and deprivation caused by prior and continuing discrimination, exploitation, neglect, poverty, disease, isolation, bondage and humiliation, whatever be their caste, religion or place of origin, will alone qualify for reservation. Call them a class or a caste or a race or a tribe or whatever nomenclature is appropriate, they are the only legitimately intended beneficiaries of reservation. Their roots of origin in the lowest of the low segments of society; their affiliation with what is traditionally regarded as demeaning occupations; their humiliating and inescapable segregation and chronic isolation from the rest of the population; their social and educational deprivation and helplessness; their abysmal poverty and degenerating backwardness; all this and more most humiliatingly branded them in the past as 'outcastes' or 'untouchables' or 'depressed classes' or whatever other nomenclature one might ascribe to describe them. It is their present plight of continuing poverty and backwardness stemming from identified historical discrimination, whatever be the religion or faith they presently profess, that the Constitution entitles them to the special protection of reservation. The fact that the search to identify backwardness for the purpose of reservation will invariably lead one to these so called outcastes or the lowest of the low castes or untouchables does not vitiate identification so long as what is sought to be identified is not caste but backwardness.

284. Poverty by itself is not the test of backwardness, for if it were so, most people in this country would be in a position to claim reservation. Janki Prasad Parimoo and Ors. v. State of Jammu & Kashmir and Ors. : [1973]3SCR236 . Reservation for all would be reservation for none, and that would be an ideal condition if affluence, and not poverty, was its basis. But unfortunately the vast majority of our people are not blessed by affluence but afflicted by poverty. Poverty is a disgrace to any nation and the resultant backwardness is a shame. But the Constitution envisages reservation for those persons who are backward because of identified prior victimisation and the consequential poverty. Poverty invariably results in social and educational backwardness. In all such cases the question to be asked, for the purpose of reservation, is whether such poverty is the result of identified historical or continuing discrimination. No matter what caused the discrimination and exploitation; the question is, did such inequity and injustice result in poverty and backwardness.

285. It is possible that poverty to which classes of citizens are reduced making them socially and educationally backward is the ultimate result of prior discrimination and continuing exploitation on account of their religion, race, caste, sex, descent, place of birth or residence. Identification of their social and educational backwardness with reference to their poverty is valid, if the ultimate cause of poverty is prior discrimination and its continuing evil effects, albeit, by reason of their religion, race, caste etc. Members of religious minorities or low castes or persons converted from amongst tribals or harijans to other religions, but still suffering from the stigma of their origin, or persons of particular areas or occupations subjected to discrimination rooted in religious or caste prejudices and the like or to economic exploitation, forced labour, social isolation or other victimisation may find themselves sinking deeply into inescapable and abysmal poverty, disease, bondage and helplessness. 'The classes of citizens who are deplorably poor automatically become socially backward'. M.R. Balaji and Ors. v. State of Mysore, (1963) 1 SCR 439. In all these cases, if classes of victims afflicted by poverty and disease are identified as socially and educationally backward, as in the case of the Scheduled Castes and the Scheduled Tribes, by reason of past societal or Governmental or any other kind of discrimination or exploitation, they qualify for reservation. See Janki Prasad Parimoo and Ors. v. State of Jammu & Kashmir and Ors. : [1973]3SCR236 .

286. Poverty reduces a man to a state of helplessness and ignorance. The poor have no social status. They have no access to learning. Over the years they invariably become socially and educationally backward. They may have no place in society and no education to improve their conditions. For them, employment in services on the basis of merits is a far cry. All these persons, along with other disadvantaged groups of citizens, are the favourites of the law for affirmative action without recourse to reservation. What is required for the further step of reservation is proof of prior discrimination resulting in poverty and social and educational backwardness. It is not every class of poverty stricken persons that is chosen for reservation, but only those whose poverty and the resultant backwardness are traceable to prior discrimination, and whose backwardness, furthermore, is comparable to that of the Scheduled Castes and the Scheduled Tribes. This is a fair and equitable adjustment of constitutional values without placing any undue burden on particular classes of citizens. State of Uttar Pradesh v. Pradip Tandon and Ors. : [1975]2SCR761 ; State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC ; Kumari K.S. Jayasree and Anr. v. State of Kerala and Anr. : [1977]1SCR194 ; K.C. Vasanth Kumar v. State of Karnataka (1985) 1 SCR 352.

287. Article 16 deals with equality of opportunity in matters of public employment. The kind of backwardness which is required to attract the special provisions protecting the backward classes of citizens under Article 16 in respect of public employment is identical to the social and educational backwardness mentioned in Article 15(4). M.R. Balaji and Ors. v. State of Mysore, (1963) Su. 1 SCR, 439; Janki Prasad Parimoo and Ors. v. State of Jammu & Kashmir and Ors. : [1973]3SCR236 . These two Articles are facets of equality specially guaranteed to citizens, while Article 14 prohibits the State from denying to any person equality before the law or the equal protection of the laws. State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC . Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preferences in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. Clause (2) prohibits discrimination against any citizen in respect of any public employment 'on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Article 16 thus guarantees equality of opportunity and prohibits discrimination of any kind solely on any one or more of the grounds mentioned in Clause (2). Nevertheless, Clause (4) of this Article provides that it is open to the State to make 'any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State'. It is an enabling provision conferring a discretionary power on the State: an ameliorative harmonisation of conflicting norms to stretch to the utmost extent the frontiers of equality; an emphatic assertion of equality between equals and inequality between unequals so as to achieve the maximum degree of qualitative and relative equality by means of affirmative action even to the point of reservation. It is in the nature of an exception or a proviso to the general rule of equality: The General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC ; M.R. Balaji (supra) at p. 473; State of Andhra Pradesh and Anr. v. P. Sagar, : [1968]3SCR595 ; State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC ; Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. : (1981)ILLJ209SC ; Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. (1969) 1 SCR 103; C.A. Rajendran v. Union of India and Ors. : (1968)IILLJ407SC 730, 733; State of Punjab v. Hiralal and Ors. : [1971]3SCR267 ; T. Devadasan v. The Union of India and Anr. : (1965)IILLJ560SC . Dr. Ambedkar called it an exception; see Constituent Assembly Debates, Vol. 7 (1948-49) p. 702 (quoted above).

288. The twin conditions to warrant reservation under Article 16(4) are: backwardness of the chosen classes of citizens and their inadequate representation in the public services. The backwardness of the classes of citizens mentioned in Article 16(4) is, as stated earlier, of the same degree and kind of social and educational backwardness as postulated in Article 15(4). Article 16(4) is meant for the protection of the Scheduled Castes and the Scheduled Tribes and other comparably backward classes of citizens who are the unfortunate victims of continuing ill effects of identified prior discrimination,

289. Whether the conditions postulated for reservation are satisfied or not is a matter on which the State has to form an opinion. But the opinion of the State must be founded on reason. The satisfaction on the basis of which an opinion has been formed by the State must be rationally supported by an objective consideration. The State must take into account all relevant matters and eschew from its mind all irrelevant matters, and make a proper assessment of the competing claims of classes of citizens and evaluate their respective backwardness before it comes to the conclusion that particular classes of citizens are so backward and so inadequately represented in the public services as to be worthy of special protection by means of reservation. This must be an objective evaluation of the competing claims for reservation. Any such conclusion must be subject to periodic administrative review by a permanent body of experts with a view to adjustment and readjustment of the State action in accordance with the changing circumstances of the beneficiaries of such action. The conclusion thus periodically arrived at by such administrative reviewing body must necessarily pass the test of judicial review whenever challenged. A Peeriakaruppan, etc. v. State of Tamil Nadu and Ors. : [1971]2SCR430 . No matter whether such orders are regarded as legislative or executive or whichever nomenclature one may ascribe to it, the test for judicial review laid down in Shri Sitaram Sugar Company Ltd. and Anr. Etc. v. Union of India and Ors. : [1990]1SCR909 must necessarily govern consideration of such questions. After an exhaustive review of authorities on the point, a Constitution Bench of this Court stated:

The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it. p. 946.

See also the principle discussed in Supreme Court Employees' Welfare Association v. Union of India and Anr. : (1989)IILLJ506SC .

290. Identification of backwardness is an ever continuing process of inclusion and exclusion. Classes of citizens entitled to the constitutional protection of reservation must be constantly and periodically identified for their inclusion and for the exclusion of those who do not qualify. To allow the undeserved to benefit by reservation is to deny protection to those who are meant to be protected. As stated by this Court in A. Peeriakaruppan etc. v. State of Tamil Nadu and Ors. : [1971]2SCR430 :.But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest.... It must be remembered that the Government's decision in this regard is open to judicial review.

291. Any affirmative action must be supported by a valid classification and must have a rational nexus with the object of redressing backwardness. It is much more so where such programmes totally exclude from consideration persons outside the chosen classes without regard to merits because of the set aside quotas. It does not matter whether Clause (4) of Article 16, like Clause (4) of Article 15, is seen as a proviso or an exception or, in the words of Mathew, J., a legislative device to emphasise the 'extent to which equality of opportunity could be carried, viz., even up to the point of making reservation'. State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC . N.M. Thomas apart, this Court has generally treated Clause (4) as an exception or a proviso to the general rule of equality enshrined in Article 16(1). Rangachari (supra); M.R. Balaji (supra) at p. 473; P. Sagar, (supra); Akhil Bhartiya Soshit Karamchari Sangh (Railway) (supra); Triloki Nath (supra); C.A. Rajendran (supra); Hiralal, (supra); T. Devadasan (supra); Dr. Ambedkar called it an exception; see Constituent Assembly Debates, Vol. 7 (1948-49) p. 702 (quoted above). Call it what one will - an exception or proviso or what and semantics apart, reservation by reason of its exclusion of the generality of candidates competing solely on merits must be narrowly tailored and strictly construed so as to be consistent with the fundamental constitutional objectives. Clause (4), seen in whatever colour, is a very powerful and potent weapon which causes lasting ill effects and damage unless justly and appropriately used. It is not a remedy for all kinds of disadvantages and disabilities and for all classes of people. It is a special and powerful weapon to wield which with less than the very special care and caution and otherwise than in the most exceptional situations, peculiar to extreme cases of backwardness, that the Constitution envisages is to give rise to invidious reverse discrimination exceeding the strict bounds of Article 16(4) and to create hateful caste- prejudices and divisions between classes of people.

292. Articles 15(4) and 16(4) refer to the same classes of backward citizens. But they do not refer to identical remedies. While Article 15(4) speaks of special provisions for the advancement of backward classes, Article 16(4) expressly permits the State to make reservation of appointments or posts in public services in favour of such classes. It is true that both are enabling provisions allowing the State to adopt such affirmative action programmes as are necessary including reservation of seats or posts. But, unlike Article 16(4), Article 15(4) is not so worded as to suggest that it is exclusionary in character. The 'special provision' contemplated in Article 15(4) is an emphatic reference to the affirmative action which the State may adopt to improve the conditions of the disadvantaged members of the backward classes of citizens. Significantly, Article 15(4) does not specifically speak of reservation, but it has been generally understood to include that power. M.R. Balaji and Ors. v. State of Mysore, (1963) SCR 439. While the State may adopt all such affirmative action programmes as it deems necessary for all disadvantaged persons, any special provision amounting to reservation and consequent exclusion from consideration of all the others in respect of the reserved quota in matters falling outside Article 16(4) must be subjected to even greater scrutiny than in the case of those falling under it.

293. The concept of equality is not inconsistent with reservation in public services because the Constitution specially says so, but, in view of its exclusion of others irrespective of merits, it can be resorted to only where warranted by compelling State interests postulated in Article 16. The State must be satisfied that in order to achieve equality in given cases, reservation is unavoidable by reason of the nature and degree of backwardness. Reservation must be narrowly tailored to that end, and subjected to strict scrutiny.

294. Affirmative action to redress the conditions of backward classes of citizens may be adopted either by a programme of preferential treatment extending certain special advantages to them or by reservation of quotas in their favour to the total exclusion of everybody outside the favoured groups. The validity of both these measures depends on classification founded on intelligible differentia having rational and substantial nexus with the object sought to be achieved, i.e., the redressal of backwardness. And such differentiation or classification for special preference must not be unduly unfair to the persons left out of the favoured groups.

295. While preferential treatment without reservation merely aids the backward classes of citizens to compete more effectively with the more meritorious and forward classes of citizens, the more drastic measure of reservation totally excludes all classes of people falling outside the backward classes of citizens from competing in the reserved quota of seats or posts. No matter what qualifications they possess and how superior are their merits, these persons not belonging to the preferred groups are prevented from competing with those of the preferred groups in respect of the reserved seats or posts, while candidates belonging to the preferred groups are entitled to compete for any seat or post, whether in the general category or in the reserved quota.

296. Preference without reservation may be adopted in favour of the chosen classes of citizens by prescribing for them a longer period for passing a test or by awarding additional marks or granting other advantages like relaxation of age or other minimum requirements. (See the preferential treatment in State of Kerala and Anr. v. N.M. Thomas and Ors. : (1976)ILLJ376SC . Furthermore, it would be within the discretion of the State to provide financial assistance to such persons by way of grant, scholarships, fee concessions etc. Such preferences or advantages are like temporary crutches for additional support to enable the members of the backward and other disadvantaged classes to march forward and compete with the rest of the people. These preferences are extended to them because of their inability otherwise to compete effectively in open selections on the basis of merits for appointment to posts in public services and the like or for selection to academic courses. Such preferences can be extended to all disadvantaged classes of citizens, whether or not they are victims of prior discrimination. What qualifies persons for preference is backwardness or disadvantage of any kind which the State has a responsibility to ameliorate. The blind and the deaf, the dumb and the maimed, and other handicapped persons qualify for preference. So do all other classes of citizens who are at a comparative disadvantage for whatever reason, and whether or not they are victims of prior discrimination. All these persons may be beneficiaries of preferences short of reservation. Any such preference, although discriminatory on its face, may be justified as a benign classification for affirmative action warranted by a compelling state interest.

297. In addition to such preferences, quotas may be provided exclusively reserving posts in public services or seats in academic institutions for backward people entitled to such protection. Reservation is intended to redress backwardness of a higher degree. Reservation prima facie is the very antithesis of a free and open selection. It is a discriminatory exclusion of the disfavoured classes of meritorious candidates: M.R. Balaji (supra). It is not a case of merely providing an advantage or a concession or preference in favour of the backward classes and other disadvantaged groups. It is not even a handicap to disadvantage the forward classes so as to attain a measure of qualitative or relative equality between the two groups. Reservation which excludes from consideration all those persons falling outside the specially favoured groups, irrespective of merits and qualifications, is much more positive and drastic a discrimination - albeit to achieve the same end of qualitative equality - but unless strictly and narrowly tailored to a compelling constitutional mandate, it is unlikely to qualify as a benign discrimination. Unlike in the case of other affirmative action programmes, backwardness by itself is not sufficient to warrant reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. Reservation is a remedial action specially addressed to the ill effects stemming from historical discrimination. To ignore this vital distinction between affirmative action short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the constitutional grant of power specially addressed to the constitutionally recognised backwardness.

298. The object of the special protection guaranteed by Articles 15(4) and 16(4) is promotion of the backward classes. Only those classes of citizens who are incapable of uplifting themselves in order to join the mainstream of upward mobility in society are intended to be protected. The wealthy and the powerful, however socially and educationally backward they may be by reason of their ignorance, do not require to be protected, for they have the necessary strength to lift themselves out of backwardness. The rich and the powerful are not the special favourites of the Constitution. Backward they may be socially and educationally, but that is a shame which they have the steam to remove and the Constitution does not extend to them the special protection of reservation. It is not sufficient that the persons meant to be protected are backward merely by reason of illiteracy, ignorance and social backwardness. If they have, inspite of such handicaps, the necessary financial strength to raise themselves, the Constitution does not extend to them the protection of reservation. The chosen classes of persons for whom reservation is meant are those who are totally unable to join the mainstream of upward mobility because of their utter helplessness arising from social and educational backwardness and aggravated by economic disability.

299. Any State action resulting in reservation must, therefore, be so tailored as to weed out and exclude all persons who have attained a certain predetermined economic level. Only persons falling below that level must qualify for reservation. This economic level has of course to be varied from time to time in accordance with the changing value of money. See the Govt. Order upheld by this Court in Kumari K.S. Jayasree and Anr. v. State of Kerala and Anr. : [1977]1SCR194 .

300. The directive principle contained in Article 46 emphasises the overriding responsibility and compelling interest of the State to promote the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes. They have to be protected from social injustice and all forms of exploitation. This principle must necessarily guide the construction of Articles 15 and 16, All affirmative action programmes must be inspired by that principle and addressed to that end. Whether such action should be in the nature of preferences or by recourse to reservation is a matter on which the State must, by an objective evaluation of the degree and nature of backwardness and with reference to other constitutional principles, come to a conclusion.

301. The State has a vital interest to uphold the efficiency of administration. To ignore efficiency is to fail the nation. Any step taken by the State in considering the claims of members of the Scheduled Castes and the Scheduled Tribes for appointment to public services and posts must be consistent with the maintenance of efficiency of administration. This principle, as stated in Article 335, must necessarily guide all affirmative action programmes for backward and other disadvantaged classes of people in matters of appointment to public services and posts. Likewise, efficiency being a compelling State interest, it must strictly guide affirmative action in matters of admission to academic institutions, and more so in specialised institutions of higher learning, for in the final analysis efficiency of public administration is governed by the quality of education and the skill of the scholars. To weaken efficiency is to injure the nation. Any reservation made without due regard to the command of Article 335 is invidious and impermissible. The General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC ; Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. : (1981)ILLJ209SC .

302. Dr. Ambedkar was unequivocal when he declared that reservation must be confined to a minority of the available posts, lest it should destroy the very concept of equality and thus undermine democracy. Any excessive reservation or any unnecessarily prolonged reservation will result in invidious discrimination. What exactly is the total percentage of reservation at a given time is a matter for the State to decide, dependent on the need of the time. But in no case shall reservation overstep the strict boundaries of minority of seats or posts or outlast the reason for it. It must remain well below 50% of available seats or posts. Every reservation must be made with a view to its early-termination on the successful accomplishment of its object.

303. It has been contended that reservation can be made not only at the time of initial appointment to a service, but also at the time of promotion to a higher post. Although this point does not directly arise from the impugned orders, it is too vital an aspect of the concept of reservation under Article 16(4) to be overlooked, and it requires, therefore, to be dealt with, albeit briefly, and particularly in deference to the submissions at the bar. This important question must be considered with reference to the overriding principle of fairness and efficiency of administration.

304. To be overlooked at the time of promotion in favour of a person who is junior in service and having no claim to superior merits is to cause frustration and passionate prejudice, hostility and ill will not only in the mind of the overlooked candidate, but also in the minds of the generality of employees. Any such discrimination is unfair and it causes dissatisfaction, indiscipline and inefficiency.

305. Article 335 requires that 'in the making of appointments to services and posts in connection with the affairs of the Union or of a State' the claims of the members of the Scheduled Castes and the Scheduled Tribes must be considered 'consistently with the maintenance of efficiency of administration' . If that is the constitutional mandate with regard to the Scheduled Castes and the Scheduled Tribes, the same principle must necessarily hold good in respect of all backward classes of citizens. The requirement of efficiency is an overriding mandate of the Constitution. An inefficient administration betrays the present as well as the future of the nation.

306. 'Reservation of appointments or posts' mentioned in Article 16(4) is with reference to appointments 'in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State'. The condition precedent to making any such reservation is the satisfaction of the State as to the inadequate representation of any backward class of citizens in the services under the State. In respect of any such class, it is open to the State to make 'any provision for the reservation of appointments or posts'.

307. An appointment is necessarily to a post, but every appointment need not necessarily be to a post in a service. An appointment to an ex-cadre post is as much an appointment to a post as it is in the case of a cadre post. The words 'appointments or posts' used in the alternative, and in respect of which reservation can be made, indicate that the appointment contemplated in Article 16(4) is not necessarily confined to posts in the services, but can be made to any post whether or not borne on the cadre of a service. Inadequate representation of any backward class of citizens enables the State to make provisions for. the reservation of 'appointments or posts'.

308. The word 'post' is often used in the Constitution in the wider sense for various purposes (see for example, Articles 309, 310(1) and 335). It is in that sense that the words 'appointments or posts' in Article 16(4) should be understood. The reasoning to the contrary in The General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC was partly influenced by certain concessions made by the respondents' counsel as to the nature of the post contemplated in Article 16(4) and the applicability of reservation to selection posts.

309. The object of reservation is to maintain numerical and qualitative or relative equality by ensuring sufficient representation for all classes of citizens. In whichever service a backward class of citizens is inadequately represented, it is open to the State to create sufficient number of posts for direct appointments. No matter whether the appointment is made to a cadre post or an ex-cadre post, the State action is beyond reproach so long as the constitutional objective of numerical and qualitative equality of opportunity is maintained by making direct appointments at the appropriate levels whenever inadequate representation of any backward class in the services is noticed by the State.

310. The initial appointments may be made at various levels or grades of the hierarchy in the service. There is no warrant in Article 16(4) to conclude from the expression 'reservation of appointments or posts' that reservation extends not merely to the initial appointment, but to every stage of promotion. Once appointed in a service, any further discrimination in matters relating to conditions of service, such as salary, increments, promotions, retirement benefits, etc. is constitutionally impermissible, it being the very negation of equality, fairness and justice.

311. To construe the expression 'post' so as to make reservation applicable at the stage of promotion by selection or otherwise is to unduly and unfairly discriminate against persons who are already in the service and are senior and no less meritorious in comparison to the reserved candidates. Promotion by selection, though based on merits, is ultimately governed by seniority, for the concerned rules generally provide that, where merits are equal, officers will be ranked according to their seniority. In the case of promotion by seniority subject to fitness, merits are not entirely disregarded, for even a senior officer can be overlooked in favour of a junior officer, if the former is found to be unfit for promotion. In all promotions, whether by selection or otherwise, merits and seniority are both significantly relevant and reservation of such posts in disregard of these two elements will result in invidious discrimination.

312. In whichever post that a member of a backward class is appointed, reservation provisions are attracted at the stage of his initial appointment and not subsequently. Further promotions must be governed by common rules applicable to all employees of the respective grades. Reasoning to the contrary in decisions, such as The General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC ; State of Punjab v. Hiralal and Ors. : [1971]3SCR267 ; Akhil Bharatiya Soshit Karamchari Sang (Railway) v. Union of India and Ors. : (1981)ILLJ209SC , is not warranted by the language of the Constitution.

313. The Constitution does not permit any citizen to be treated unfairly or unequally. To maintain numerical and qualitative equality and thus ensure adequately effective representation of the backward classes in the services, it is open to the State to make direct appointments at various levels or grades of the service, and make appropriate provisions for reservation in respect of such initial appointments. Once appointed to a post, any further discrimination by reservation in regard to conditions of service including promotion is impermissible. Any deviation from this golden rule of justice and equality is unconstitutional.

314. Reservation is the extreme limit to which the doctrine of affirmative action can be extended. Beyond the strict confines of Clause (4) of Article 16. Reservation in public employment has no warrant in the law for it then becomes the very antithesis of equality. While reservation is impermissible for appointment to higher posts by promotion from lower posts, any other legitimate affirmative action in favour of disadvantaged classes of citizens by means of valid classification is perfectly in accordance with the mandate of Article 16(1). It is within the discretion of the State to extend to all disadvantaged groups, including any backward class of candidates, preferences or concessions such as longer period of minimum time to pass qualifying tests etc. [see N.M. Thomas (supra)].

315. Reservation affords backward classes of citizens a golden Opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. But it is wrong to see it as a mere weapon to capture power, as suggested at the bar. In a democracy, real power lies in the ballot and it is exercised by the majority. Any attempt to project the concept of reservation under Clause (4) as a weapon of aggrandisement to gain power will result in the creation of a meaningless myth and a dangerous illusion which will ultimately distort the constitutional values.

316. It is possible that large segments of population enjoying well entrenched political advantages by reason of numerical strength may claim 'backward class' status, when, on correct principles, they may not qualify to be so regarded. If such claims were to be conceded on extraneous consideration, motivated by pressures of expediency, and without due regard to the nature and degree of backwardness, the very evil of discrimination which is sought to be remedied by the Constitution would be in danger of being perpetuated in the reverse at the expense of merit and efficiency and contrary to the interests of the truly backward classes of citizens who are the constitutionally intended beneficiaries of reservation. In the words of Krishna Iyer, J.:..To lend immortality to the reservation policy is to defeat its raison d'etre; to politicise this provision for communal support and Party ends is to subvert the solemn undertaking of Article 16(1)....

Akhil Bharatiya Soshit taramchari Sangh (Railway) v. Union of India and Ors. : (1981)ILLJ209SC .

317. The sooner the need for reservation is brought to an end, the better it would be for the nation as a whole. The sooner we redressed all disabilities and wiped out all traces of historical discrimination, and stopped identifying classes of citizens by the stereotyped, stigmatised and ignominious label of backwardness, the stronger, healthier and better united we would have emerged as a nation founded on diverse customs, practices, religions and languages but knitted together by innumerable binding strands of common culture and tradition.

General Observations:

318. It is wrong and unwise to see affirmative action merely as a penance or an atonement for the sins of past discrimination. It is not retributive justice on wrong doers. It is corrective and remedial justice to compensate the victims of prior injustice. It is not merely focussed on reparation for past inequities. It is a forward looking balancing act of reformative social engineering; an architecture of a better future of harmonious relationship amongst all classes of citizens; an equitable redistribution of community resources with a view to the greatest happiness of the greatest number of people.

319. It is true that an important aspect of State interest in initiating affirmative action is to correct or remedy the evil effect of inequities stemming from prior discrimination, but the focus in any such action must be on the victims and not on the wrong doers. The constitutional mandate is to rescue the victims of prior discrimination and not to punish the wrong doers. The sins of the past shall not visit upon the present either by allowing its ill effects to continue or by taking retributive action as retaliation upon the wrong doers. The task of nation building is not to open up the wounds of the past, but to allow them to heal by negativing its ill effects and wiping off injustice stemming from it. Any present or continuing discrimination is, of course, remediable or punishable under the law. Removal of inequities is the raison d'etre of any affirmative action.

320. Discrimination in any form hurts as there is an element of deprivation of the legitimate expectations of classes of people upon whom the inevitable consequences of any such action must necessarily fall. Any unfair and undue deprivation of any class of people is constitutionally impermissible.

321. Reservation of posts or seats for the benefit of some and to the exclusion of others is inherently unjust and unfair unless strictly brought within reasonable limits. The only legitimate object of excluding the generality of people and conferring a special benefit upon the chosen classes is to redeem the latter from their backwardness.

322. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Tribes and other classes of persons in comparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects.

323. Any attempt to view affirmative action as merely retributive or to unduly over-emphasise its compensatory aspect and widen the scope of reservation beyond minority of posts or seats is to practice excessive and invidious reverse discrimination. To project particular castes as legitimate claimants for such compensatory discrimination, without due regard to the nature and degree of their backwardness, is to invite the public wrath of stigmatising prejudice against them, thereby promoting caste hatred and separatism. Any such stereotyped and stigmatised approach to this soul searching sociological problem is to distort the fairness of the political and constitutional process of adjustment and readjustment amongst classes of people in our country.

324. Affirmative action is not merely compensatory justice, which it is, but it is also distributive justice seeking to ensure that community resources are more equitably and justly shared among all classes of citizens. Furthermore, from the point of view of social utility, affirmative action promotes maximum well-being for the society as a whole and strengthens forces of national integration and general economic prosperity.

325. Any benign affirmative action with a view to equality amongst classes of citizens is a constitutionally permitted programme, but the weapon of reservation must be carefully and sparingly used in order that, while the victims of past discrimination are appropriately compensated, the generality of persons striving to progress on their own merits do not become victims of excessive, unfair and invidious reverse discrimination. Affirmative action must find justification in the removal of disadvantages and not in their imposition. See Tribe, American Constitutional Law, 2nd edn.(1988) pp.1521-1554; Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, Harvard Law Review, Vol. 100, p. 78 (1986-87); Marc Galanter, Competing Equalities (1984); Myrl L. Duncan, The Future of Affirmative Action: A Jurisprudential/Legal Critique, Harvard Civil Rights Civil Liberties Law Review, Vol. 17, 1982, p. 503; The Rights of Peoples, Edited by James Crawford, Oxford (1988).

326. Summary:

(1) It is open to the State to adopt valid classification and make special provisions for the protection of classes of citizens whose comparative backwardness the State has a mandate to redress by affirmative action programmes. Any such programme must be strictly tailored to the constitutional requirement that no citizen shall be excluded from being considered on the basis of merits for any public employment except to the extent that a valid reservation has been made in favour of backward classes of citizens.

(2) The Constitution prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Any discrimination solely on any one or more of these prohibited grounds will result in invidious reverse discrimination which is impermissible. None of these grounds is the sole or the dominant or the indispensable criterion to identify backwardness which qualifies for reservation. But each of them is, in conjunction with factors such as poverty, illiteracy, demeaning occupation, malnutrition, physical and intellectual deformity and like disadvantages, a relevant criterion to identify socially and educationally backward classes of citizens for whom reservation is intended.

(3) Reservation contemplated under Article 16 is meant exclusively for backward classes of citizens who are not adequately represented in the services under the State.

(4) Only such classes of citizens who are socially and educationally backward are qualified to be identified as backward classes. To be accepted as backward classes for the purpose of reservation under Article 15 or Article 16, their backwardness must have been either recognised by means of a notification by the President under Article 341 or Article 342 declaring them to be Scheduled Castes or Scheduled Tribes, or, on an objective consideration, identified by the State to be socially and educationally so backward by reason of identified prior discrimination and its continuing ill effects as to be comparable to the Scheduled Castes or the Scheduled Tribes. In the case of the Scheduled Castes or the Scheduled Tribes, these conditions are, in view of the notifications, presumed to be satisfied. In the case of the other backward classes of citizens qualified for reservation, the burden is on the State to show that these classes have been subjected to such discrimination in the past that they are reduced to a state of helplessness, poverty and the consequential social and educational backwardness as in the case of the Scheduled Castes and the Scheduled Tribes. In other words, reservation is meant exclusively for the Harijans, the Girijans, the Adivasis, the Dalits or other like 'depressed' classes or races or tribes most unfortunately referred to in the past as the 'untouchables' or the 'outcastes' by reason of their being born in what was wrongly regarded as low castes and associated with what was equally wrongly treated as demeaning occupations, or any other class of citizens afflicted by like degree of poverty and degradation caused by prior and continuing discrimination and exploitation, whatever be their professed faith, religion or caste. These classes of citizens, segregated in slums and ghettos and afflicted by grinding poverty, disease, ignorance, ill health and backwardness, and haunted by fear and anxiety, are the constitutionally intended beneficiaries of reservation, not because of their castes or occupations, which are merely incidental facts of history, but because of their backwardness and disabilities stemming from identified past or continuing inequities and discrimination.

(5) Members of the Scheduled Castes or the Scheduled Tribes do not lose the benefits of reservation and other affirmative action programmes intended for backward classes merely by reason of their conversion from the Hindu or the Sikh or the Buddhist religion to any other religion, and all such persons shall continue to be accorded all such benefits until such time as they cease to be backward.

(6) Identification of backward classes for the purpose of reservation with reference to historical discrimination and its, continuing ill effects is, however, subject to the overriding condition that no person whose means exceeded a predetermined economic level should be entitled to the protection of reservation, however backward he may be socially and educationally. He may, however, be considered for the benefits of other affirmative action programmes, but in doing so his comparative affluence in relation to other backward class candidates may be a relevant consideration to exclude him.

(7) Once a class of citizens is identified on correct principles as backward for the purpose of reservation, the 'means test' must be strictly and uniformly applied to exclude all those persons in that class reaching above the predetermined economic level.

(8) Reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 or Article 16 must at all times remain well below 50% of the total number of seats or posts.

(9) Reservation has no application to promotion. It is confined to initial appointment, whichever be the level or grade a which such appointment is made in the administrative hierarchy, and whether or not the post in question is borne on the cadre of the service.

(10) Once reservation is strictly confined to the constitutionally intended beneficiaries, as aforesaid, there will probably be no need to disappoint any deserving candidate legitimately seeking the benefit of reservation, for there will then be sufficient room well within the 50% limit for ail candidates belonging to the backward classes as properly determined on correct principles. In that event, questions such as caste or religion will become merely academic and the competing maddening rush for 'backward' label will vanish.

(11) A periodic administrative review of all affirmative action programmes, including reservation of seats or posts, must be conducted by a specially constituted Permanent Authority with a view to adjustment and readjustment of such programmes in proportion to the nature, degree and extent of backwardness. All such programmes must stand the test of judicial review whenever challenged. Reservation being exclusionary in character must necessarily stand the test of heightened administrative and judicial solicitude so as to be confined to the strict bounds of constitutional principles.

(12) Whenever and wherever poverty and backwardness are identified, it is the constitutional responsibility of the State to initiate economic and other measures to ameliorate the conditions of the people residing in those regions. But economic backwardness without more does not justify reservation.

(13) Poverty demands affirmative action. Its eradication is a constitutional mandate. The immediate target to which every affirmative action programme contemplated by Article 15 or Article 16 is addressed is poverty causing backwardness. But it is only such poverty which is the continuing ill-effect of identified prior discrimination, resulting in backwardness comparable to that of the Scheduled Castes or the Scheduled Tribes, that justifies reservation.

(14) While reservation is a remedy for historical discrimination and its continuing ill effects, other affirmative action programmes are intended to redress discrimination of all kinds, whether current or historical.

(15) Any legitimate affirmative action must be supported by a valid classification based on an intelligible differentia distinguishing classes of citizens chosen for the protective measures from the generality of citizens excluded from such measures, and such differentia must bear a reasonable nexus with the object sought to be achieved, namely, the amelioration of the backwardness of the chosen classes of citizens, which implies a reasonable proportion between the aim of the action and the means employed for its accomplishment, and its discontinuance upon the accomplishment of the object.

(16) In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation as aforesaid, but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing, self- employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of the law-enforcing machinery, industrialisation, construction of roads, bridges, culverts, canals, markets, introduction of transport, free supply of water, electricity and other ameliorative measures particularly in areas densely populated by backward classes of citizens.

327. CONCLUSIONS:

A. The validity of the impugned Government Orders providing for reservation of posts depends on convincing proof of proper identification of backward classes of citizens by recourse to relevant criteria, such as poverty, illiteracy, disease, unhygienic living conditions, low caste and consequential isolation, and in accordance with correct principles, i.e., with reference to the continuing ill effects of historical discrimination resulting in social and educational backwardness comparable to that of the Scheduled Castes or the Scheduled Tribes, and inadequate representation of such classes of citizens in the services under the State, but subject to the overriding condition that all those persons whose means have exceeded a predetermined economic level shall be denied reservation. Amongst the aforementioned backward classes of citizens correctly identified to be qualified for reservation, preference may be legitimately extended to the comparatively poorer or more disadvantaged sections.

B. Reservation of seats or posts solely on the basis of economic backwardness, i.e., without regard to evidence of historical discrimination, as aforesaid, finds no justification in the Constitution.

C. Reservation of seats or posts for backward classes of citizens, including those for the Scheduled Castes and the Scheduled Tribes, must remain well below 50% of the total seats or posts.

D. Reservation is confined to initial appointment to a post and has no application to promotion.

E. It is open to the State to adopt any valid affirmative action programme, otherwise than by reservation, for amelioration of the disabilities of all disadvantaged persons, including backward classes of citizens.

328. Neither the impugned orders of the Government of India (O.M. No. 36012/31/90-Estt(SCT) dated 13th August, 1990 and O.M. No. 36012/ 31/90-Estt(SCT) dated 25th September, 1991) nor the material relied upon by it nor the affidavits filed in support of the said orders disclose proper application of mind by the concerned authorities to the principles stated above for valid identification of the backward classes of citizens qualified for reservation in terms of Article 16 of the Constitution of India. The impugned orders are, therefore, unsustainable. The respondent-Government is accordingly directed to reconsider the question of reservation contemplated by Article 16(4) in the light of the aforesaid principles and pass appropriate orders.

ANNEXURE

DR. AMBEDKAR'S SPEECH IN

THE CONSTITUENT ASSEM-

BLY ON 30.11.1948

Now, Sir, to come to the other question which has been agitating the members of this House, viz., the use of the word ' 'backward'' in Clause (3) of article 10, I should like to begin by making some general observations so that members might be in a position to understand the exact import, the significance and the necessity for using the word 'backward' in this particular clause. If members were to try and exchange their views on this subject, they will find that there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is 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 is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative - and it ought to be operative in their judgment to its fullest extent - there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If honourable Members will bear these facts in mind - the three principles, we had to reconcile, -- they will see that no better formula could be produced than the one that is embodied in Sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in Sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now -- for historical reasons -- been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word 'backward' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly. But I think honourable Members will realise that the Drafting Committee which has been ridiculed on more than one ground for producing sometimes a loose draft, sometimes something which is not appropriate and so on, might have opened itself to further attack that they produced a Draft Constitution in which the exception was so large, that it left no room for the rule to operate. I think this is sufficient to justify why the word 'backward' has been used.

With regard to the minorities, there is a special reference to that in Article 296, where it has been laid down that some provision will be made with regard to the minorities. Of course, we did not lay down any proportion. That is quite clear from the section itself, but we have not altogether omitted the minorities from consideration. Somebody asked me: 'What is a backward community'? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend Mr. T.T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner. Mr. Krishnamachari asked : 'Who is a reasonable man and who is a prudent man? These are matters of litigation'. Of course, they are matters of litigation, but my honourable Friend, Mr. Krishnamachari will understand that the words 'reasonable persons and prudent persons' have been used in very many laws and if he will refer only to the Transfer of Property Act, he will find that in very many cases the words 'a reasonable person and a prudent person' have very well been defined and the court will not find any difficulty in defining it. I hope, therefore that the amendments which I have accepted, will be accepted by the House.

[Constituent Assembly Debates, Vol. 7 (1948-49), pp. 701-702.]

Kuldip Singh, J. : [Dissenting]

329. The Government action on the Mandal Report evoked spontaneous reaction all over the country. The controversy brought to the fore important constitutional issues for the determination of this Court. Nine-Judge Bench, specially constituted, has had a marathon-hearing on various aspects of Article 16 of the Constitution of India. There are five judgments, from Brother Judges on Mandal-Bench, in circulation. I have the pleasure of carefully reading these erudite expositions on various facets of Article 16 of the Constitution of India. I very much wanted to refrain from writing a separate judgment but keeping in view the importance of the issues involved and also not being able to persuade myself to agree fully with any of the judgments I have ventured to express myself separately. I may, however, say that on some of the vital issues I am in complete agreement with R.M. Sahai, J. The historical background and the factual-matrix have been succinctly narrated by Brother Judges and as such it is not necessary for me to cover the same.

330. I propose to deal with the following issues in seriatim:

A. Whether 'class' in Article 16(4) of the Constitution means 'caste'? Can caste be adopted as a collectivity to identify the backward classes for the purposes of Article 16(4)?

B. Whether the expression 'any backward class of citizens' in Article 16(4) means 'socially and educationally backward classes' as it is in Article 15(4)?

C. What is meant by the expression 'any backward class of citizens...not adequately represented in the Services under the State' in Article 16(4)?

D. Whether Article 16(4) permits reservation of appointments or posts at the stage of initial entry into Government Services or even in the process of promotion?

E. Whether Article 16(4) is exhaustive of the State-power to provide job-reservations?

F. If Article 16(1) does not permit job-reservations, can protective discrimination as a compensatory measure permissible, in any other form under Article 16(1)?

G. To what extent reservations are permissible under Article 16(4)? Below 50% or to any extent?

H. When a 'backward class' has been identified, can a means-test be applied to skim-off the affluent section of the 'backward class'?

I. Can poverty be the sole criterion for identifying the 'backward class' under Article 16(4).

J. Is it mandatory to provide reservations by a legislative Act or it can be done by the State in exercise of its executive power?.

K. Whether the identification of 3743 castes as a 'backward class' by Mandal Commission is constitutionally valid?

A

331. Mr. Ram Jethmalani appearing for the State of Bihar has advanced an extreme argument that the 'class' under Article 16(4) means 'caste'. Mr. P.P. Rao on the other hand vehemently argued that the Constitution of India, with secularism and equality of opportunity as its basic features, does not brook an argument of the type advanced by Mr. Jethmalani. According to him caste is a closed door. It is not a path - even if it is - it is a prohibited path under the Constitution.

332. We may pause and have a fresh-look at the socio-political history of India prior to the independence of the country.

333. Caste-system in this country is sui-generis to Hindu religion. The Hindu-orthodoxy believes that an early hymn in the Rigveda (the Purusasukta:- 10.90) and the much later Manava Dharma Sastra (law of Manu), are the sources of the caste-system. Manu, the law-giver cites the Purusasukta as the source and justification for the caste division of his own time. Among the Aryans the priestly caste was called the Brahmans, the warriors were called the kshatriyas, the common people divided to agriculture, pastoral pursuits, trade and industry were called the Vaishyas and the Dasas or non-Aryans and people of mix-blood were assigned the status of Shudras. The Chaturvama- system has been gradually distorted in shape and meaning and has been replaced by the prevalent caste-system in Hindu society. The caste system kept a large section of people in this country outside the fold of the society who were called the untouchables. Manu required that the dwellings of the untouchables shall be outside the village-their dress, the garments of the dead-their food given to them in a broken dish. We are proud of the fact that the Framers of the Constitution have given a special place to the erstwhile untouchables under the Constitution. The so called untouchable-castes have been named as Scheduled Castes and Scheduled Tribes and for them reservations and other benefits have been provided under the Constitution. Even now if a Hindu-caste stakes its claim as high as that of Scheduled Castes it can be included in that category by following the procedure under the Constitution.

334. The caste system as projected by Manu and accepted by the Hindu society has proved to be the biggest curse for this country. The Chaturvarna-system under the Aryans was more of an occupational order projecting the division of labour. Thereafter, in the words of Professor Harold A. Gould in his book 'The Hindu Caste System', the Brahmins 'sacralized the occupational order, and occupationalised the sacred order'. With the passage of time the caste-system became the cancer-cell of the Hindu Society.

335. Before the invasions of the Turks and establishment of Muslim rule the caste-system had brought havoc to the social order. The Kshtriyas being the only fighters, three fourth of the Hindu society was a mute witness to the plunder of the country by the foreigners. Mahmud Ghazni raided and looted India for seventeen times during 1000 AD to 1027 AD. In 1025 AD Mahmud Ghazni raided the famous temple of Somanath. How he plundered the shrine is a matter of history. Thereafter between 1175 AD and 1195 AD Mahmud Ghazni invaded India several times. According to the historians one of the causes of the defeat of the Indians at the hands of Turks was the prevalent social conditions especially the caste system of Hindus.

336. Mr. L.P. Sharma in his book 'Ancient History of India' writes that the prevalent social conditions, practice of untouchability and division of society by the caste-system among others were the causes of defeat of Rajputs at the hands of Turks. Mr. Shanna quotes various other historians in the following words:

Dr. K.A. Nizami. has also pointed out that the caste system weakened the Rajputs militarily because the responsibility of fighting was left to a particular section of the society i.e. the Kshatriyas. He writes, 'The real cause of the defeat of the Indians lay in their social system and their invidious caste distinctions, which rendered the whole military organisation rickety and weak. Caste taboos and discriminations killed all sense of unity-social or political.' Dr. K.S. Lal also writes that, 'It was very much easy for the Muslims to get traitors from a society which was so unjustly divided. This was one of the reasons why all important cities of north India were lost to the invader (Muhammad of Ghur) within fifteen years.' Dr. R.C. Majumdar writes, 'No public upheaval greets the foreigners, nor are any organised efforts made to stop their progress. Like a paralysed body, the Indian people helplessly look on, while the conquerors march on their corpse.

337. The Hindus did not learn lesson from the invasions of the Turks and continued to perpetuate the caste system, In the middle of 15th century major part of north India including Delhi came to be occupied by the Afghans of Lodi. Ultimately Babar established the Moghul rule in India in 1526. After the Mughals the Britishers came and ruled this country till 1947.

338. This country remained under shackles of slavery for over one thousand years. The reason for our inability to fight the foreign-rule was the social de-generation of India because of the caste-system. To rule this country it was not necessary to divide the people, the caste-system conveyed the message 'Divided we are - come and rule us'.

339. It was only in the later part of 19th century that the national movement took birth in this country. With the advent of the 20th century Mahatma Gandhi, Jawahar Lal Nehru alongwith other leaders infused national and secular spirit amongst the people of India. For the first time in the history of India caste, creed and religion were forgotten and people came together under one banner to fight the British rule. The caste-system was thrown to the winds and people from all walks of life marched together under the slogan of 'Quit-India'. It was not the Kshatriyas alone who were the freedom fighters - whole of the country fought for freedom. It was the unity and the integrity of the people of India which brought freedom to them after thousand years of slavery. The Constitution of India was drafted in the background of the freedom struggle.

340. Secularism is the basic feature of the Indian Constitution. It envisages a cohesive, unified and casteless society. The Constitution has completely obliterated the caste-system and has assured equality before law. Reference to caste under Articles 15(2) and 16(2) is only to obliterate it. The prohibition on the ground of caste is total, the mandate is that never again in this country caste shall raise its head. Even access to shops on the ground of caste is prohibited. The progress of India has been from casteism to egalitarianism- from feudalism to freedom.

341. The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly head in various forms. Caste poses a serious threat to the secularism and as a consequence to the integrity of the country. Those who do not learn from the events of history are doomed to suffer again. It is, therefore, of utmost importance for the people of India to adhere in letter and spirit to the Constitution which has moulded this country into a sovereign, socialist, secular democratic republic and has promised to secure to all its citizens justice, social economic and political, equality of status and of opportunity.

342. Caste and class are different etymologically. When you talk of caste you never mean class or the vice-versa. Caste is an iron-frame into which people keep on falling by birth. M. Weber in his book 'The Religion of India' has described India as the land of 'the most inviolable organisation by birth'. Except the aura of caste there may not be any common thread among the caste-fellows to give them the characteristic of a class. On the other hand a class is a homogeneous group which must have some live and visible common traits and attributes.

343. Professor Andre Beteille, Department of Sociology, University of Delhi in his book 'The Backward Classes in Contemporary India' has succinctly brought-out the distinction between 'caste' and 'class' in the following words:

Whichever way we look at it, a class is an aggregate of individuals (or, at best, of households), and, as such, quite different from a caste which is an enduring group. This distinction between an aggregate of individuals and an enduring group is of fundamental significance to the sociologist, and, I suspect, to the jurist as well. A class derives the character it has by virtue of the characteristics of its individual members. In the case of caste, on the other hand, it is the group that stamps the individual with its own characteristics. There are some affiliations which an individual may change, including that of his class; he cannot change his caste. At least in principle a caste remains the same caste even when a majority of its individual members change their occupation, or their income, or even their relation to the means of production; it would be absurd from the sociological point of view to think of a class in this way. A caste is a grouping sui generis, very different from a class, particularly when we define class in terms of income or occupation.

344. Article 16(2) Of the Constitution of India in clear terms states that 'no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.' In Juxtaposition Article 16(4) states that 'nothing in this Article shall prevent the State from making any provisions for the reservations of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State'. On a bare reading of the two sub-clauses of Article 16 it is obvious that the Constitution forbids classification on the ground of caste. No backward class can, therefore, be identified on the basis of caste.

345. We may refer to some of the judgments of this Court on the subject.

346. In K. Chitralekha and Anr. v. State of Mysore & Ors. : [1964]6SCR368 this Court observed as under:

The important factor to be noticed in Article 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression 'classes' is used in Clause (4) of Article 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution from using the expression 'backward classes or castes''. The juxtaposition of the expression 'backward classes' and Scheduled Castes' in Article 15(4) also leads to a reasonable inference that the expression 'classes' is not synonymous with castes.... This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles.... 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 following the appropriate procedure laid down by the Constitution.... But what we intend to emphasize is that under no circumstance a 'class' can be equated to a 'caste', though the caste of an individual or a group or 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.

347. In Triloki Nath and Anr. v. State of Jammu & Kashmir and Ors. (1969) 1 SCR 103 this Court observed as under:

Article 16 in the first instance by cl,(2) prohibits discrimination on the ground, inter alia, of religion, race, caste, place of birth, residence and permits an exception to be made in the matter of reservation in favour of backward classes of citizens. The expression 'backward class' is not used as synonymous with 'backward caste' or 'backward community.... 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.

348. In State of Uttar Pradesh v. Pradip Tandon and Ors. : [1975]2SCR761 the following observations of this Court are relevant:

The expression 'classes of citizens' indicates a homogeneous section of the people who are grouped together because of certain likeliness and common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste nor religion nor place of birth will be the uniform element of common attributes to make them a class of citizens.

349. Finally in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. : [1977]1SCR194 this Court held as under:

It is not necessary to remember that special provision is contemplated for classes of citizens and not for individual citizens as such, and so though the caste of the group of citizen may be relevant, its importance should not be exaggerated. 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 backwardness.

350. It is, thus, obvious that this Court has firmly held that 'class' under Article 16(4) cannot mean 'caste'. Chitralekha's case is an authority on the point that caste can be totally excluded while identifying a 'backward class'. This Court in Pradip Tandon's case has held that caste cannot be the uniform element of common attributes to make it a class.

351. Secular feature of the Constitution is its basic structure. Hinduism, from which the caste-system flows, is not the only religion in India. Caste is an anathema to Muslims, Christians, Sikhs, Buddhists and Jains. Even Arya Smajis, Brahmo Smajis, Lingyats and various other denominations in this country do not believe in caste-system. If all these religions have to coexist in India - can 'class' under Article 16(4) mean 'caste'? Can a caste be given a gloss of a 'class'? Can even the process of identifying a 'class' begin and end' with 'caste'? One may interpret the Constitution from any angle the answer to these questions has to be in the negative. To say that in practice caste- system is being followed by Muslims, Christians, Sikhs and Buddhists is this country, is to be oblivious to the basic tenets of these religions. The prophets of these religions fought against casteism and founded these religions. Imputing caste-system in any form to these religions is impious and sacrilegious. This Court in M.R. Balaji and Ors. v. State of Mysore (1963) 1 SCR 439 held as under:.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 conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains, or even Lingayats are socially backward or not? The test of castes would be inapplicable to those groups.

352. I, therefore, hold that 'class' under Article 16(4) cannot be read as 'caste'. I further hold that castes cannot be adopted as collectivities for the purposes of identifying the 'backward class' under Article 16(4), I entirely agree with the reasoning and conclusions reached by R.M. Sahai, J. to the effect that occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of 'backward classes'. Caste-collectivity is unconstitutional and as such not permitted.

B

353. The expression '-any backward class of citizens--' in Article 16(4) of the Constitution as understood till- date means 'socially and educationally backward class'. In Janki Prasad Parimoo and Ors. etc. etc. v. State of Jammu & Kashmir : [1973]3SCR236 Palekar, J observed as under:

Article 15(4) speaks about 'socially and educationally backward classes of citizens'. While Article 16(4) speaks only of 'any backward class of citizens'. However, it is now settled that the expression 'backward class of citizen' in Article 16(4) means the same thing as the expression 'any socially and educationally backward classes of citizens' in Article 15(4).

Mr. N.A. Palkiwala contended that the above quoted assumption by Palekar, J was without any basis and wholly unjustified. According to him it was not settled by any judgment of this Court that the two expressions in Articles 15(4) arid 16(4) mean the same thing. Far from being 'settled', no judgment of this Court had even suggested prior to 1973 that the expressions in the two Articles meant the same thing. He further contended that unfortunately, in subsequent cases it was not pointed out to this Court that the assumption of Palekar, J was not correct and the wrong assumption of the learned Judge passed as correct. According to him an erroneous assumption, even by a Judge of this Court, cannot and does not make the law. This Court in M.R. Balaji and Ors. v. State of Mysore (1963) Suppl. SCR 439 speaking through Gajendragadkar, J observed as under:

Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4). There can be no doubt that the Constitution makers assumed, as they were entitled to, that while making adequate reservation under Article 16(4), care would be taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Article 15(4), reservation made under Article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this connection it is necessary to emphasise that Article 15(4) is an enabling provision; it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary.

Although in Balaji's case this Court observed 'what is true in regard to Article 15(4) is equally true in regard to 16(4)' but this was entirely in different context. In the said case reservations made in the educational institutions under Article 15(4) were challenged on the ground that the same were void being violative of Articles 15(1) and 29(2) of the Constitution. In the above quoted observations this Court indicated that the reservations made under Article 16(4) can also be challenged on the same or similar grounds as the reservations under Article 15(4) of the Constitution of India. This Court did not examine the question as to whether the expression 'backward class of citizens' in Article 16(4) means the same thing as the expression- 'any socially and educationally backward classes of citizens' under Article 15(4).

354. Articles 340 and 16(4) were in the original Constitution. Article 15(4) was inserted a year later by the Constitution First Amendment Act, 1951. Article 340 refers to 'socially and educationally backward classes''. The Framers of the Constitution did not, however, use the expression 'socially and educationally backward' in Article 16(4). The definition of 'backward classes' as socially and educationally backward in Article 340, may have given rise to the assumption that it was not necessary to re-define the expression 'backward class' in Article 16(4). Be that as it may the fact remains that there is no reasoned judgment of this Court holding that the two expressions mean the same thing.

355. The same Constituent Assembly, which drafted the original Constitution, drafted Article 15(4) and brought it into the Constitution by way of Constitution First Amendment Act, 1951. Article 340 defining 'backward classes' was already in the original Constitution but in spite of that the Constituent Assembly defined the 'backward classes' for the purposes of Article 15(4) as 'socially and educationally backward'. It was, therefore, not the intention of the Framers of the Constitution to follow the definition given in Article 340, where ever the expression 'backward class' occurs in the Constitution. On the other hand it is plausible to assume that wherever the Framer of the Constitution wanted the 'backward classes' to be defined as 'socially and educationally backward', they did so, leaving Article 16(4) to be interpreted in its context.

356. Articles 340 and 15(4) are part of the same Constitutional-Scheme. Socially and educationally backward classes may be identified by a commission appointed under Article 340 and the said commission- after investigation- may make recommendations, including the sanctioning of grants, for the uplift of the backward classes. Article 15(4) makes ft possible to implement the recommendations of the commission and for that purpose permits protective discrimination by the State. Since there is identity of purpose between the two Articles the 'backward class' in the context of these Articles has been defined identically. But that is not true of Article 15(4) and 16(4). When these two Articles of Constitution in juxtaposition- enacted in consecutive years- use markedly different phraseology, well established canons of interpretation dictate that such meanings should be assigned to the words as are indicated by the difference in phraseology. Article 16(4) has different purpose than Article 15(4). The subject matter of Article 16(4) is the service under the State. It is a special provision enabling the State to make any provision for the reservation of appointments or posts in favour of the backward section of any class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The expression 'backward' in the context of Article 16(4) is entirely different than the expression 'socially and educationally backward class' in Article 15(4). Under Article 16(4) the backward class has to be culled-out from amongst the classes which are not adequately represented in the State Services. Any species of backwardness is relevant in the context of Article 16(4). By contrast, any special provisions to be made under Article 15(4)- e.g. grants out of the public exchequer- can only be made for 'socially and educationally backward classes'. What is to be identified under Article 16(4) is not the 'backward class' but a 'class of citizens' which is inadequately represented in the State-services. On the other hand it is the ' 'backward class'' which is to be identified under Article 15(4). When the two classes to be identified in the two articles are different the question of giving them the same meaning does not arise.

357. Constituent Assembly Debates Volume 7 (1948-1949) pages 684 to 702 contains the speeches of stalwarts like R.M. Nalavade, Dr. Dharma Prakash, Chandrika Ram, V.I. Muniswamy Pillai, T. Channiah, Santanu Kumar Das, H.J. Khandakar, Mohd. Ismail Sahib, Hukum Singh, K.M. Munshi, T.T. Krishnamachari, H.V. Kamat and Dr. B.R. Ambedkar on the draft Article 10(3) [corresponding to Article 16(4)]. In a nut-shell the discussion projected the following view-points:

(1) The original draft Article 10(3) did not contain the word 'backward'. The original Article only contained the expression 'any class of citizens'. The word 'backward' was inserted by the Drafting Committee at a later stage.

(2) The opinion of the members of the Constituent Assembly was that the word 'backward' is vague, has not been defined and is liable to different interpretations. It was even suggested that ultimately the Supreme Court would interpret the same. Mr. T.T. Krishnamachari even stated in lighter-tone that the loose drafting of the chapter on fundamental rights would be a paradise for the lawyers.

(3) Not a single member including Dr. Ambedkar gave even a suggestion that 'backward class' in the said Article meant 'socially and educationally backward''.

(4) The purpose of Article 10(3) according to Dr. Ambedkar was that 'there must at the same time be a provision made for the entry of certain communities which have so far been outside the Administration...that there shall be reservations in favour of certain communities which have not so far had a proper 'look-in' so to say into the Administration'.

(5) According to Dr. Ambedkar the said Article was enacted to safe guard two things namely the principle of equality of opportunity and to make provision for the entry of certain communities which have so far been outside the Administration. Dr. Ambedkar further stated:Unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word 'backward' which, I admit, did not originally find a place in the fundamental rights in the way in which it was passed by this Assembly.

358. The reading of the Constituent Assembly Debates makes it clear that the only object of enacting Article 16(4) was to give representation to the classes of citizens who are inadequately represented in the services of the State. The word 'backward' was inserted later on only to reduce the number of such classes who are inadequately represented in the services of the State. The intention of the Framers of the Constitution, gathered from the Constituent Assembly Debates, leaves no manner of doubt that the two 'classes' to be identified in the two articles are different and as such the expressions used in the two articles cannot mean the same. Article 16(4) enables the State to make reservations for any backward section of a class which is inadequately represented in the services of the State. Almost every member who spoke on the draft Article 10(3) in the Constituent Assembly complained that the word 'backward' in the said Article was vague and required to be defined but in spite of that. Dr. Ambedkar in his final reply did not say that the word 'backward' meant 'socially and educationally backward', rather he gave the explanation, quoted above which supports the reasoning that the word ' 'backward'' was inserted in Article 16(4) to identify the backward section of any class of citizens which is not adequately represented in the State-Services and for no other purpose.

359. I, therefore, hold that the expression 'backward class of citizens'' Binder Article 16(4) does not mean the same thing as the expression 'any socially and educationally backward classes of citizens' in Article 15(4). The judgments of this Court wherein it is assumed that the two expressions in Articles 15(4) and 16(4) mean the same thing do not lay down correct law and are overruled to such extent.

C

360. Over a period of four decades this Court under a mistaken view read the expression 'any backward class of citizens' in Article 16(4) to mean the same as 'backward classes of citizens' in Article 15(4). Having held that the two Articles operate in different fields, the crucial question which falls for consideration is what is meant by the expression 'Any backward class of citizens...not adequately represented in the services under the State' in Article 16(4).

361. A layman's look at Article 16(4) gathers the impression that the reservation under the said Article is permissible for the backward classes of citizens who are not adequately represented in the services under the State. But on closer scrutiny- and examination it is clear that the reservations under Article 16(4) are provided for classes of citizens which are not adequately represented in the State Services. The original draft article 10(3) [corresponding to Article 16(4)] was as under:

10(3) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any class of citizens who, in the opinion of the State, are not adequately represented in the services under the State.

362. Reading the original draft Article 10(3) leaves no manner of doubt that the manifest intention of the Framers of the Constitution was to provide reservation for those classes of citizens who are not adequately represented in the State services. It is common knowledge that during the British regime the State services were packed from amongst the persons who were on the right side of the regime. Mass of the Indian people who were active in the freedom struggle were kept out of State services. Article 16(4) was enacted with the sole purpose of giving representation to the classes of citizens who are not adequately represented therein. The sine qua non for providing reservation is the inadequate representation of the class concerned in the State services.

363. The word 'backward' was inserted in the draft Article 10(3) by the Drafting Committee before the draft was finalised. The insertion of the word 'backward' at a later stage did not change the intention with which the original draft Article 10(3) was brought into existence. Fortunately, for the people of this country, there are lengthy deliberations in the Constituent Assembly Debates which show the purpose and the object of adding the word 'backward' in the draft Article 10(3). Dr. Ambedkar in his speech before the Constituent Assembly gave the object and purpose of enacting original draft Article 10(3) and also gave elaborate reasons for inserting the word 'backward' in the said Article. The said speech is reproduced hereunder;

Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look in' so to say into the administration. If honourable Members will bear these facts in mind - the three principles, we had to reconcile, - they will see that no better formula could be produced than the one that is embodied in Sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in Sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now - for historical reasons - been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word 'backward' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly.

(Constituent Assembly Debates, Vol. 7, 1948-49 pages 701-702).

364. Dr. Ambedkar stated in clear terms that draft Article 10(3) now Article 16(4) was brought in by the framers of the Constitution to provide 'reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration.' He nowhere stated that the reservations were meant for backward classes. According to him, the Article was enacted with the object of providing reservation to those classes of citizens who are not adequately represented in the State-Services. Dr. Ambedkar further elaborated the point when he stated 'the administration which has now - for historical reasons - been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services'. Dr. Ambedkar was not referring to backward or non-backward communities, he was only referring to the communities which were dominating the public services and those which were not permitted to enter the said services. While making it clear that the reservations are meant for those classes of citizens who are inadequately represented in the State-Services, Dr. Ambedkar visualised that conceding in full the demand of such communities, reserving majority of the seats for them and leaving minority of the seats unreserved, would render the guarantee under Article 16(1) nugatory. He illustrated the point by giving figures and stated that a safeguard was to be provided so that majority of the appointments/posts in the State-services are not consumed in the process of reservation. It was for that purpose, according to Dr. Ambedkar, the expression 'backward' was inserted in the draft Article 10(3). The object of adding the word 'backward' was only to reduce the number of claimants for the reserve posts. Instead of the whole class having inadequate representation in the State-services only the backward section of that class is made eligible for the reserve posts. In a nutshell, the reservation under Article 16(4) is not meant for backward classes but for backward sections of the classes which are not adequately represented in the State-services. There may be a class which is inadequately represented in the State-services and it may be backward as a whole, like the Scheduled Castes and the Scheduled Tribes. Such a class as a whole is eligible for the reserve posts.

365. 'Not adequately represented in the services under the State' is the only test for the identification of a class under Article 16(4). Thereafter the 'Backward class' has to be culled-out from out of the classes which satisfy the test of inadequacy.

366. Under the Constitution the 'backward class' which has been identified for preferential treatment is the 'socially and educationally backward' class. The Constitutional-scheme is explicit. Articles 340 and 15(4) make it clear that wherever the Constitution intended to provide special compensatory treatment for the 'backward classes' they have been defined as 'socially and educationally backward'. Article 16(4) is not in line with Articles 340 and 15(4). Article 16(4) does not provide job-reservations for the backward classes. That is why the expression 'socially and educationally backward' has not been used therein. The classes of citizens to be identified under Article 16(4) are those who are not adequately represented in the services under the State.

367. Examine it from another angle. If the job-reservations under Article 16(4) are meant for 'any backward class' then the expression '..not adequately represented..' has to be read in relation to the said class. Can it be done? Is it possible to classify the backward classes into those who are adequately represented in the State-services and those who are not? Can a class which is adequately represented in the State-services be considered backward? Negative is the answer to all these questions. A class which is adequately represented in the State-services cannot be considered a backward class. A class may not be backward even if it has inadequate representation in the State-services but once it secures adequate representation in the State-services it no longer remains backward. It is not possible to read the expression 'not adequately represented' in Article 16(4) in relation to 'any backward class'. If you do so then the said expression is rendered redundant. To make every word of Article 16(4) meaningful and workable the said expression can only be read in relation to 'class of citizens''.

368. Yet another way to examine. Scheduled castes and scheduled tribes are a 'class' by themselves and the Constitution permits protective discrimination to compensate them. Reservation of seats in the House of People and the Legislative Assemblies have been provided for them. Article 335 is special provision for taking into consideration their claims in the appointments to State-services. Had there been an intention to provide job-reservations in favour of weaker sections of society or for the 'socially and educationally backward classes' then scheduled caste and scheduled tribes would have been the first to be provided for by specific mention in Article 16(4). It is idle to say that the expression 'backward class of citizens' would include them. Article 15(4) uses the expression '...any special provision for advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes''. Similarly Article 46 provides 'The State shall promote...weaker section of the people, and, in particular, of the scheduled castes and scheduled tribes...'. Thus where ever in the Constitution special protection has been provided for socially and educationally backward classes the scheduled castes and scheduled tribes have been specifically mentioned alongwith. Article 16(4) does not give protection to either of the two, it only provides for those who are inadequately represented in the State services. If the 'scheduled caste and scheduled tribes' and 'socially and educationally backward classes' qualify the test of inadequacy they are eligible for the reserved seats under Article 16(4). The scheduled castes and scheduled tribes being the weakest of the weak per-se satisfy the test.

369. The condition precedent for a class to get benefit under Article 16(4) is not its backwardness but its inadequacy in State-services. Once inadequacy is established and the classes on that test are identified then the backward sections of those classes become eligible to the benefit of reservation. Classes, which are inadequately represented', can be identified by occupation, economic criterion, family income or from political sufferers, border areas, backward areas, communities kept out of State-services by the British or by any other method which the State may adopt. Once a class which is inadequately represented, is identified it is only the backward section of that class which is eligible for job reservations. Backward section can be culled-out by adopting a means test, or on the basis of social, educational or economic backwardness. Once the classes are identified there can be no difficulty for the State to find out the backward-parts of those classes.

370. Mandal has identified 52% population of this country as backward. 22% have already been identified as Scheduled Castes and Scheduled Tribes. In a country with a population of 850 million people - 74% of which is backward - job reservation can hardly be the source of reducing social and economic disparities in the society. Even the Mandal Report has characterised the job reservations as 'Palliatives'. The Framers of the Constitution- with secularism, egalitarianism, integrity and unity as their avowed objects- could not have permitted horizontal division of the country into backward and non-backward for the sake of job-reservations.

371. I, therefore, hold that Article 16(4) permits reservation of appointments/posts in favour of classes of citizens which in the opinion of the State are not adequately represented in the services under the State. Once such classes are identified then the reserve posts are offered to the backward sections of those classes.

372. Before parting with the subject I may say that the successive Governments, whether in the States or at the center, have been re-miss in the discharge of their obligations, under the Constitution, towards the poor and backward people of the country. Job-reservations as a dole, has been the vote-catching platter. Neither the job-reservations nor the reservation of seats in the educational institutions are of material help. Unless illiteracy and poverty are removed, the backward classes cannot be benefited by the reservations alone. Affirmative-Action Programme on war footing is needed to uplift the backwards. Liberal grants and subsidised schemes under Article 340 read with Articles 15(4) and 46 are needed to remove illiteracy and poverty. Housing, sanitation and other necessities of life are to be provided. Illiteracy is the root cause of backwardness. ' 'Free and compulsory education' is nowhere within reach even 45 years after the independence. The legislations enabling free education are only on paper. A poor father, whose child is earning and contributing towards the family income, may not send the child to school even if the education is free. The State may consider compensating the father for the loss in income due to child's stopping work for going to school. It is not for this Court to suggest what the Government should do, we only say that the State has not done what it is required to do under the Constitution. Job-reservation is not the answer to the problem. Prof. Andre Beteille in his book (supra) has summed up the issue in the following words:

What has gone wrong with our thinking on the backward classes is that we have allowed the problem to be reduced largely to that of job reservation. The problems of the backward classes are too varied, too large and too acute to be solved by job reservation alone. The point is not that job reservation has contributed so little to the solution of these problems but, rather, that it has diverted attention from the masses of Harijans and Adivasis who are too poor and too lowly even to be candidates for the jobs that are reserved in their names. Job reservation can attend only to the problems of middle class Harijans and Adivasis: the overwhelming majority of Adivasis and Harijans, like the majority of the Indian people, are outside this class and will remain outside it for the next several generations. Today, job reservation is less a way of solving age-old problems than one of buying peace for the moment. It would be foolish to blame only the government for wanting to buy peace in a country in which everyone wants to buy peace, it would be foolish also to recommend an intransigent attitude to a government which has neither the will to impose its power nor the imagination to think of alternatives. But unless it is able to offer something better to the backward classes than it has done so far, reservation will continue to bedevil it.... In assessing any scheme of reservations today, we have to keep in mind the distinction between those schemes that are directed towards advancing social and economic equality, and those that are directed towards maintaining a balance of power. Reservations for the Scheduled Castes and Scheduled Tribes are, for all their limitations, directed basically towards the goal of greater equality overall. Reservations for the Other Backward Classes and for religious minorities, whatever advantages they may have, are directed basically towards a balance of power. The former are in tune with the spirit of the Constitution; the latter must lead sooner or later to what Justice Gajendragadkar has called a 'fraud on the Constitution.

D

373. The next question for consideration is whether Article 16(4) provides reservation of appointments or posts at the stage of initial entry to Government services or even in the process of promotion. As at present the question is not res-integra. A Constitution Bench of this Court, in The General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC by a majority of three to two, has held that promotion to a selection post is covered by Article 16(4) of the Constitution of India. Rangachari's case has been followed by this Court in State of Punjab v. Hiralal and Ors. : [1971]3SCR267 and Akhil Bharatitya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. : (1981)ILLJ209SC . This Court has also referred to Rangachari's case in various other judgments. The reasoning of the majority in Rangachari's case has, however, been followed in the subsequent judgments of this Court without adding any further reason. Mr. Venugopal and Ms. Shyamla Pappu, learned Counsel for the petitioners have contended that majority judgment in Rangachari's case does not lay-down correct law.

374. The point in dispute in Rangachari's case was 'is promotion to a selection post which is included in Article 16(1) and (2) covered by Article 16(4) or is it not?' The majority in Rangachari's case interpreted Articles 16(1), 16(2) and 16(4) as under:

(1) The matters relating to employment must include all matters in relation to employment both prior and subsequent to the appointment which are incidental to the employment and form part of the terms and conditions of such employment. Thus promotion to selection posts is included both under Article 16(1) and (2).

(2) Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and

(2) do not fall within the mischief of Article 16(4), For instance the conditions of service relating to employment such as salary, increment, gratuity, pension and the age of superannuation are matters relating to employment and as such they do not form the subject matter of Article 16(4).

(3) Both 'appointments' and 'posts' to which the operative part of Article 16(4) refers to and in respect of which the power to make reservation has been conferred on the State must necessarily be appointments and posts in the service. The word 'posts' in Article 16(4) cannot mean ex-cadre posts in the context.

(4) The condition precedent for the exercise of the powers conferred by Article 16(4) is the inadequate representation of any backward class in the State services. The inadequacy may be numerical or qualitative. In the context the expression 'adequately represented' imports considerations of 'size' as well as 'values', numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved.

(5) The word 'posts' under Article 16(4) includes selection posts and as such reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may be filled by promotion thereafter.

375. The first three findings of the majority in Rangachari's case reproduced above are unexceptionable, however, findings 4 and 5, with utmost respect, do not flow from the plain language of Article 16(4) of the Constitution of India.

376. There is no doubt that the backward classes should not only have adequate representation in the lowest cadres of services but they should also aspire to secure adequate representation in the higher services as well. Article 16(4) permits reservation for backward classes by way of direct recruitment to any of the cadres in the State services. Reservation can be made in direct recruitment to any cadre or service from Class-IV to Class-I of the State services. The majority in Rangachari's case has read in Article 16(4), what is not there, to support the element of qualitative representation.

377. The reservation permissible under Article 16(4) can only be 'in favour of any backward class of citizens' and not for individuals. Article 16(1) guarantees a right to an individual citizen whereas Article 16(4) permits protective discrimination in favour of a class. It is, therefore, mandatory that the opportunity to compete for the reserve posts has to be given to a class and not to the individuals. When direct recruitment to a service is made the 'backward class' as a whole is given an opportunity to be considered for the reserve posts. Every member of the said class has a right to compete. But that is not true of the process of promotion. The backward class as a collectivity is nowhere in the picture; only the individuals, who have already entered the service against reserve-posts, are considered. In the higher echelons of State services- cadre strength being small- there may be very few or even a single 'backward class' candidate to be considered for promotion to the reserve post. An individual citizen's right guaranteed under Article 16(1) can only be curtailed by providing reservations for a 'backward' class and not for backward individuals. The promotional posts are not offered to the backward class. Only the individuals are benefited. The object, context and the plain language of Article 16(4) make it clear that the job-reservation can be done only in the direct recruitment and not when the higher posts are filled by way of promotion.

378. Examine from another angle. Article 16(4) provides for reservation of appointments or posts. Promotion is an incident of service which comes after appointment. 'Appointment' simpliciter means initial appointment to a service. Even the majority in Rangachari's case did not dispute this proposition of law. But interpreting the word 'posts' to include selection posts it has been held that reservation can be made in the initial appointments as well as in regard to selection posts to be filled thereafter. With respect, it is not possible to construe the word 'posts' in the manner the majority judgment in Rangachari's case has done. The expression 'reservation of ...posts in favour of any backward class of citizens'' only means that the posts in any cadre or service can be reserved by the State Government. It is not possible to read in these lines the permissibility of reservation even in the process of promotion. This is the only interpretation which can be given in the context and also in conformity with the service jurisprudence.

379. It has been rightly held in Rangachari's case that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). The conditions of service which are matters relating to employment are protected by the doctrine of equality of opportunity and do not form the subject matter of Article 16(4). It is settled proposition of law that right to promotion is a condition of service. Once a person is appointed he is governed by the conditions of service applicable thereto. Appointment and conditions of service are two separate incidents of service. Conditions of service exclusively come within the expression 'matters relating to employment' ' and are covered by Article 16(1) and not by 16(4). When all other conditions of service fall out-side the purview of Article 16(4) and are exclusively covered by Article 16(1) then where is the justification to bring promotion within Article 16(4) by giving strained-meaning to the expression 'posts'. The only conclusion by reading Articles 16(1), 16(2) and 16(4) which can be drawn is that all conditions of service including promotion are protected under Articles 16(1) and (2). Article 16(4) makes a departure only to the extent that it permits the State Government to make any provision for the reservation of appointments or posts at the initial stage of appointment and not in the process of promotion.

380. Constitution of India aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. If members of backward classes can maintain minimum necessary requirement of administrative efficiency not only representation but also preference in the shape of reservation may be given to them to achieve the goal of equality enshrined under the Constitution. Article 16(4) is a special provision for reservation of appointments and posts for them in Government services to secure their adequate representation. The entry of backward class candidates to the State services through an easier ladder is, therefore, within the concept of equality. When two persons one belonging to the backward class and another to the general category enter the same service through their respective channels then they are brought at par in the cadre of the service. A backward class entrant cannot be given less privileges because he has entered through easier-ladder and similarly a general class candidate cannot claim better rights because he has come through a tougher-ladder. After entering the service through their respective sources they are placed on equal footing and thereafter there cannot be any discrimination in the matter of promotion. Both must be treated equally in the matters of employment after they have been recruited to the service. Any further reservation for the backward class candidate in the process of promotion is not protected by Article 16(4) and would be violative of Article 16(1).

381. Although there is no factual material before us but it would not be hypothetical to assume that the reservation in promotion- based on roster points- can lead to various anomalies such as the person getting the benefit of the reservation may jump over the heads of several of his seniors not only in his basic cadre but even in the higher cadres to which he is promoted out of turn. Even otherwise when once a member of the backward class has entered service via reserve post it would not be fair to keep on providing him easier ladders to climb the higher rungs of the State services in preference to the general category. Instead of reserving the higher posts for in-service members of the backward class the same should be filled by direct recruitment so that those members of backward class who are not in the State services may get an opportunity to enter the same.

382. For the reasons indicated above I hold that the interpretation given by the majority in Rangachari's case to Article 16(4), to the effect that it permits reservations in the process of promotion, is not permissible and as such cannot be sustained. Rangachari's case to that extent is over-ruled. I hold that Article 16(4) permits reservation of appointments or posts in favour of any backward class of citizens only at the initial stage of entry into the State services. Article 16(4) does not permit reservation either to the selection posts or in any other manner in the process of promotion.

E&F;

383. Article 16(1) provides equality of opportunity for all citizens in matters relating to State-services. Equals have to be treated equally whereas the unequals ought not to be treated equally. For effective implementation of the right guaranteed under Article 16(1) classification is permissible. Such classification has to be reasonable having regard to the object of the right. Article 16(4) is another facet of Article 16(1). It exclusively provides for reservation which is one of the forms of classification. Article 16(4) being a special provision regarding reservation it completely takes away such classification from the purview of Article 16(1). Thus the State power to provide job reservations is wholly exhausted under Article 16(4). No reservation of any kind is permissible under Article 16(1). Article 16(4) completely overrides Article 16(1) in the matter of job-reservations.

384. Article 16(4) thus exclusively deals with reservation and it cannot be invoked for any other form of classification. Article 16(1), however, permits protective discrimination, short of reservation, in the matters relating to employment in the State-services. On these issues I entirely agree and adopt the reasoning and the conclusions reached by R.M. Sahai, J. and hold as under:

1. Article 16(1) and 16(4) operate in the same field.

2. Article 16(4) is exhaustive of the State-power to provide reservations in State-Services.

3. Protective discrimination, short of reservations, which satisfy the tests of reasonableness, is permitted under Article 16(1).

G

385. I have carefully read the reasoning and the conclusions reached by R.M. Sahai, J. on this issue. Agreeing with him I hold as:

(i) that the reservations under Article 16(4) must remain below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid.

(ii) It is for the State to adopt the methodology of providing reservations below 50%. The State may provide the said reservation in respect of the substantive vacancies arising in a year or in the cadre or service. It would be permissible to carry forward the reserve vacancies of one year to the next year. It is reiterated that the vacancies reserved in a year including those which are carried forward shall not exceed 50%.

(iii) No reservation of any kind can be made for any class or category whether backward or non-backward under Article 16(1).

H

386. The protective discrimination in the shape of job-reservations has to be programmed in such a manner that the most deserving section of the backward class is benefited. Means-test ensures such a result. The process of identifying backward class can not be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backwardness but while identifying the class they may have come within the collectivity. It is often seen that comparatively rich persons in the backward class- though they may not have acquired any higher level of education- are able to move in the society without being discriminated socially. The members of the backward class are differentiated into superior and inferior. The discrimination which was practiced on them by the superior class is in turn practiced by the affluent members of the backward class on the poorer members of the said class. The benefits of special privileges like job-reservations are mostly chewed up by the richer or more affluent sections of the backward classes and the poorer and the really backward sections among them keep on getting poorer and more backward. It is only at the lowest level of the backward class where the standards of deprivation and the extent of backwardness may be uniformed. The jobs are so very few in comparison to the population of the bacliward classes that it is difficult to give them adequate representation in the State-services. It is, therefore, necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Economic ceiling to cut off the backward class for the purpose of job-reservations is necessary to benefit the needy-sections of the 'Class. I, therefore, hold that means test is imperative to skim-off the affluent sections of the backward classes.

I

387. Whether a group of citizens living below poverty line or under poverty-conditions can be considered a backward class under Article 16(4)? In other words can a class of citizens be identified as backward solely on the basis of economic criterion? Emphatic yes, is my answer.

388. Poverty is the culprit- cause of all kinds of backwardness. A poor man has no money. He lacks ordinary means of subsistence. Indigence keeps him away from education. Poverty breeds backwardness all around the class into which it strikes. It invariably results in social, economic and educational backwardness. It is difficult to perceive on what reasoning one can say that a class of citizens living under poverty-conditions is not a backward class under Article 16(4). The main reason advanced in this respect is that social backwardness being the mandatory criterion for the identification of backward class under Article 16(4), poverty alone cannot be the basis for backwardness in relation to Article 16(4). The other reason advanced is that in this country except for a small percentage of the population, the people are generally poor. The argument is that reservation for all is reservation for none. It is necessary to examine the two reasons on the anvil of logic.

389. This Court, over a period of four decades, has been interpreting the expression 'backward class' in Article 16(4)' to mean 'socially and educationally backward' on the mistaken assumption that the expression 'any backward class of citizens' in Article 16(4) means the same thing as 'socially and educationally backward classes' in Article 15(4).

390. Based on elaborate reasoning I have held in part B of this judgment that the expression 'any backward class of citizens' in Article 16(4) cannot be confined to 'socially and educationally backward classes'. The concept of 'any backward class of citizens' in Article 16(4) is much wider than the 'backward classes' defined under Article 15(4). It is not correct to say that social backwardness is an essential characteristic of the 'backward class' under Article 16(4). The object of Article 16(4), as held by me in part C of this judgment, is to provide job-reservations for the backward sections of those classes of citizens which are not adequately represented in the State-services. In the context of Article 16(4) the economic criterion is essentially relevant. On the interpretation of Article 16(4) as given by me in parts B and C of this judgment, social backwardness is not the sine qua non for being a 'backward class' under Article 16(4).

391. Even if it is assumed that a backward class under Article 16(4) means socially backward, any class of citizens living below poverty line would amply qualify to be a 'backward class'. Poverty has a direct nexus to social backwardness. It is an essential and dominant characteristic of poverty. A rich belonging to backward caste - depending upon his disposition - may be or may not be socially backward, but a poor Brahmin struggling for his livelihood invariably suffers from social backwardness. The reality of present-day life is that the economic standards confer social status on individuals. A poor person, howsoever honest, has no social status around him whereas a rich smuggler moves in a high society. No statistics can hide the fact that there are millions of people, who belong to the so-called elite castes, are as poor and often a great deal poorer than a very large proportion of the backward classes. It is a fallacy to think that a person, though earning thousands of rupees or holding higher posts is still backward simply because he happens to belong to a particular caste or community whereas millions of people living below poverty line are forward because they were born in some other caste, or communities. Poverty never discriminates, it chooses its victims from all religions, castes and creeds. The pavement dwellers and the slum dwellers, belonging to different castes and religions, have a common thread of poverty around them. Are they not the backward classes envisaged under Article 16(4)? Poverty binds them together as a class. Classes of citizens living in chronic-cramping poverty are per-se socially backward. Poverty runs into generations. It may be a result of the social or economic inequality of the past. During the British regime several communities who fought the Britishers and those who actively participated in the freedom struggle, were deliberately kept below the poverty line. There are vast areas in India, like Kalahandi in Orissa, which are perennially poverty-stricken. By and large poverty in this country is a historical factor. Looked from any angle it is not possible to hold that the citizens of India who are living under poverty-conditions or below poverty line are not socially backward. It would be doing violence to the object, purpose and the language of Article 16(4) to say that the poor of the country are not eligible for job-reservations under the said Article.

392. Simply because the bulk of the population of this country is poor and there may be a large number of claimants for the reserved-jobs that is no ground to deny the poor their right under Article 16(4). This reasoning will apply to the other backward classes with much more force. Mandal has identified 52% of the population as backward. Apart from that 22% are scheduled castes and scheduled tribes. Those who are canvassing reservations for 74% of the so called backward classes have no basis whatsoever to say that 40% poor of the country be denied the benefit of job-reservations. The poor can be classified on the basis of income, occupation, conditions of living such as slum dwellers, pavement dwellers etc. and priorities worked out. They can be operationally defined, categorised, sub-categorised and thereafter the backward sections can be identified for the purposes of Article 16(4). It is high time that we leave the dogmatic approach of making reservation in public services on the basis of caste as a symbol of social backwardness. We must adopt a practical measure to confining it only to low income groups of people having unremunerative occupations whose talents and abilities are subdued under the weight of poverty. I, therefore, hold that a backward class for the purposes of Article 16(4) can be identified solely on the basis of economic criteria.

J

393. This question has been examined by Brother Judges and they have held that the reservations can be provided by the Parliament, State Legislatures, statutory rules as well as by way of Executive Instructions issued by the Central Government and the State Governments from time to time. The Executive Instructions can be issued only when there are no statutory provisions on the subject. Executive Instructions can also be issued to supplement the statutory provisions when those provisions are silent on the subject of reservations. These propositions of law are unexceptionable and I reiterate the same. I, however, make it clear that any Executive Instruction [issued under Articles 16(4), 73 or 162] providing reservations, which goes contrary to statutory provisions or the rules under Article 309 or any other statutory rules, shall not be operative to the extent it is contrary to the statutory provisions/rules.

K

394. Legal aspects arising out of Article 16(4) have been discussed and decided. Finally we have to examine the process of identification of the backward classes and test the same at the anvil of Article 16(4) as interpreted by us. Mandal Commission was set up on January 1, 1979 under Article 340 to identify the classes for the purposes of Article 16(4). The Commission identified 3743 backward castes and submitted its report on December 31, 1980, No action was taken on the Mandal Report by the successive governments for a decade . The Mandal report was finally lifted from the Morgue by the government of the day which accepted the report and issued Memorandum dated August 13, 1990 providing reservations for 3743 backward castes identified by the Mandal Commission. Later on the successor government amended the reservation - policy by the Memorandum dated September 25, 1991. These Memoranda have been reproduced in the judgments proposed by brother Judges. Both the Memoranda are based on the Mandal Report. The reservations provided under the two Memoranda are to be extended to 3743 castes identified by the Mandal Commission. It is, therefore, necessary to find out whether the backward classes to which reservations under the Memoranda are being extended, have been constitutionally and validly identified. I do not agree with the theory - apparently without logic - that the Memoranda can be adjudicated de-hors Mandal, Report. Elaborate arguments were addressed before us challenging the validity of Mandal Report by M/s. Palkhiwala, Venugopal, Shyamala Pappu and other learned Counsel appearing for the petitioners. Agreeing with the learned Counsel, I hold that the identification of 3743 castes as the 'beneficiary-class' for job reservations under Article 16(4), is wholly unconstitutional, invalid and cannot be acted upon. My reasons for holding so are as under:

i) The terms of reference require the Commission 'to determine the criteria for defining the socially and educationally backward classes'. Assume that Mandal has done so. The reference and the Mandal Commission's investigation is based on the legal fallacy that the expression 'backward class of citizens' means the same thing as 'socially and educationally backward classes of citizens' in Article 15(4). That is why the Commission was asked to identify socially and educationally backward classes. We have held that two expressions in Article 16(4) and 15(4) do not mean the same thing. The classes to be identified under Article 16(4) cannot be confined only to social and educational backwardness. The definition therein is much wider and is not limited as under Article 15(4). It is thus, evident that the identification of the 'backward classes' under Article 16(4) cannot be based only on the criteria of social and educational backwardness. Other classes which could have been identified on the basis of occupation, economic standards, environments, backward area residence, etc. etc. have been left out of consideration. The identification done by Mandal is thus violative of Article 16(4) and as such cannot be sustained.

ii) It has been held by me that the backward classes for the purpose of Article 16(4) are the backward sections of the classes who are inadequately represented in the State-services. Admittedly, this exercise was not done. Mandal identified the castes on the criteria of social and educational backwardness.

iii) The Terms of Reference further required the Commission 'to examine the desirability or otherwise of making provision for the reservation of appointments or tests...in public services'. This most vital part of the Terms of Reference was wholly ignored by the Commission. Before making its recommendations the Commission was bound, by the Terms of Reference, to determine the desirability or otherwise of such reservations. The Commission did not at all investigate this essential part of the Terms of Reference.

iv) Mandal has not done any survey to find out as to whether 3743 castes which according to him are the backward classes, under Article 16(4), had inadequate representation in the State services. There is no material on the record to show that 3743 castes identified by Mandal are not adequately represented in the State services. The condition of inadequacy is a condition precedent under Article 16(4) of the Constitution. This having not been established, the identification of the so called 'backward classes', is wholly unconstitutional and inoperative.

(v) Para 12.7 of the report indicates that the list of backward castes was prepared from the following sources:

1. Socio-educational field survey;

2. Census report of 1961;

3. Personal knowledge gained through extensive touring and from the evidence; and

4. Lists of other backward classes notified by various State Governments.

The so called 'socio-educational field survey', was an eye-wash. Only two villages and one urban block in each district of the country was taken into consideration. According to the petitioners only .06% of the total villages in the country were surveyed. Mr. Venugopal relied on a chart showing the sources from which the list of castes was prepared by the Mandal Commission. The contents of chart were not disputed before us by the Union of India. Mr. Venugopal pointed out that out of 3743 castes only 406 were subjected to the socio-educational field survey. To be precise the chart shows that only 10,85% castes were subjected to survey and the remaining castes were picked up from other sources. The Commission set up for the purposes of identifying backward classes is under an obligation to conduct comprehensive survey. A backward class, identified on the sole test of caste and that also with only 10.85% socio-educational survey, cannot be constitutionally valid under Article 16(4).

Large number of castes were picked up by the Mandal Commission from the State lists. It was illustrated before us that out of 260 castes identified from the Union Territory of Pondichhery only 14 were subjected to socio-educational survey. One was identified on personal assessment of the Commission and the remaining 245 castes were picked up from the State list. These facts are not denied by the Union of India in the affidavit filed in writ petition 930/ 90. Similarly large number of castes were taken from the lists of other backward classes operating in the States. It was wholly illegal for the Commission to adopt the State lists without any investigation and survey. It is not disputed that no Commission was ever set-up in Pondicherry to identify the backward classes. There is nothing in the Mandal report to show that the State lists which were adopted were ever prepared as a result of any survey, investigation or scrutiny. Mandal Report in paras 2.63 and 2.64 specifically states that Haryana, Himachal Pradesh, Assam, Pondicherry, Rajasthan, Orissa, Meghalaya and Delhi have notified lists of Other Backward Classes without their being any enquiry into their conditions. In para 2.65 it is mentioned that Andaman and Nicobar, Arunachal Pradesh, Chandigarh, Dadri and Nagar Haveli, Goa, Daman and Diu, Lakshadweep, Madhya Pradesh, Manipur, Mizoram, Nagaland, Sikkim, Tripura and West Bengal have never prepared a list of OBCs. If the State lists were to be declared as Other Backward Classes by the Central Government then no Commission under Article 340 was required - an Administrator could do the job. When 90% of the castes selected were not subjected to the socio-educational survey it is impermissible to treat the said castes as backward classes.

1961 census was also taken as a source for preparing the list of backward castes. There is nothing on the record to show as to why Mandal relied on 1961 census when the 1971 census was available. A statement filed by Mr. Venugopal after examining the government records shows that the castes were also picked up from the Kaka Kalekar Commission Report. In para 1.13 Mandal condemns Kaka Kalekar's Report, even otherwise the said report was rejected by the Government of India in 1955 but still Mandal adopts castes from the said Report.

It is, thus, obvious that hardly any investigation was done by the Mandal Commission to find out the backward classes for the purposes of Article 16(4). A collection of so called backward castes by a clerical-act based on drawing-room investigation cannot be the backward classes envisaged under Article 16(4). If the Castes enlisted by Mandal are permitted to avail the benefit of job-reservations, thereby depriving half the country's population of its right under Article 16(1) the result would be nothing but a fraud on the Constitution.

vi) The Mandal report virtually rewrites Article 16(4) by substituting caste for class. The caste has been made the sole and exclusive test for determining the backward classes. Every other test- economic or non-economic- has been wholly rejected. Para 1.21 of Mandal report states 'the substitution of caste by economic tests will amount to ignoring the genesis of social backwardness in the Indian society'. Paras 11.5 and 11.25 of the Mandal report indicate that the caste was taken as a collectivity for the purposes of socio-educational survey. The 'indicators' ' for determining social and educational backwardness were also applied to the castes alone. Every single piece of evidence and other material adverted to by the Commission was only for the purpose of determining whether a caste was backward. There was no investigation at all to find out whether a member or family in the caste was backward. The 'indicators' invoked to determine backwardness were invariably applied to the castes and not to the individuals. What emerges is that in the first instance only a caste was taken as a collectivity. Thereafter no individual or a family of that caste was subjected to the 'indicators'. Only the castes were tested through the 'indicators' and the result obtained. Thus the Caste has been made the sole, paramount, overriding and decisive factor. The methodology based on caste alone is unconstitutional as it violates Articles 16(2) 'and 16(4) of the Constitution of India.

vii) The Mandal report invents castes even for non-Hindus. The obsession with casteism and the desire to apply the same yardstick to all Indians impelled the Commission to identify backward classes among non-Hindus also by the exclusive test of caste (paras 12.11 to 12.18) regardless of the fact that caste is anathema to christenity, Islam and Sikhism. There are various other denominations and religions in the country like Buddhist, Jains, Arya Smajis, Lingyats etc. who do not believe in casteism. The net-result is that almost 25% of the population was not taken into consideration by the Mandal Commission. The approach was anti-secular and against the basic features of the Constitution.

viii) The Mandal Commission has estimated the population of other backward classes in the country as 52%. To say the least the exercise to reach the figure of 52% is wholly imaginary. It is in the realm of conjecture. The conclusion arrived at in para 12.22 of the Mandal Report to the effect that backward classes constitute nearly 52% of the Indian population is based on 1931 census. It is wholly arbitrary to count the population of backward classes in the country on the basis of census which took place fifty years before the report was submitted. In order to reach the conclusion of 52% Mandal has added up the population of scheduled castes, scheduled tribes, non-Hindu communities (Muslims, Christians, Sikhs, Buddhists, Jains) and the forward Hindu castes and communities ([Brahmans, Rajputs, Marathas, Jats, Vashya-Baniya etc, Kayastha, other forward Hindu caste/ groups) which make 56.30% of the total population. Mandal has assumed that the residual population of 43.70% (100 minus 56.30% equivalent to 43.70%) consists of backward classes. It is difficult to imagine how anybody can accept such an illusory and wholly arbitrary calculations. It is pity that half of the country is being deprived of their fundamental right under Article 16(1) on the basis of the census exhumed from a sixty year old grave and the calculations which are unknown to logic and fair-play. Mandal further assumed, erroneously, that relative population growth of various communities at the time of Mandal report was the same as at the time of 1931 census. It is absurd to think that there was no change in their population growth during the long period of 50 years. It is pertinent to observe that India of 1931 comprised of present India, Pakistan, Bangladesh, Burma and Sri Lanka and as such it would be wholly erroneous to relate the caste-based population situation of 1931 to that of 1980.

ix) According to Mandal Commission's own showing the materials before the Commission were woefully inadequate. Essential data was non-existent. 'Hardly any State was able to give the desired information' (para 9.4). As regards representation of OBCs in Government services, the information received by the Commission was 'too sketchy and scrappy for any meaningful inference which may be valid for the country as a whole' (para 9.14). 'No State Government could furnish figures regarding the level of literacy and education amongst other backward class' (para 9.30). 'No lists of OBCs is maintained by the Central Government, nor their particulars are separately compiled in Government offices' (para 9.47).

395. Based on the reasoning and the conclusions reached by me in paras 'A' to 'K' of the judgment, I order and direct as under:

(i) The identification of 3743 castes as a 'backward class' by Mandal Commission is constitutionally invalid and cannot be acted upon.

(ii) Office Memorandum dated August 13, 1990 issued by the Government of India is unconstitutional, non-est and as such cannot be enforced.

(iii) Para 2(i) of the Office Memorandum dated September 25, 1991 adopts the means - test. The adoption of means - test by the Government of India in principle is upheld. Since para 2(i) is applicable to the 3743 castes identified by the Mandal Commission, the said para shall not operate till the time 'backward classes' for the purposes of Article 16(4) are identified by the Government of India in accordance with the law laid-down in this judgment.

(iv) Para 2(ii) of the Office Memorandum dated September 25, 1991 is upheld. Since this para is integral para of the two Memoranda dated August 13, 1990 and September 25, 1991, it cannot operate independently. I, however, hold that the Government of India can make reservations solely based on economic criterion by a separate order.

396. The writ petition and all connected matters are disposed of in the above terms with no order as to costs.

Sawant, J.: [Concurring]

397. In a legal system where the Courts are vested with the power of judicial review, on occasions issues with social, political and economic overtones come up for consideration. They are commonly known as political questions. Some of them are of transient importance while others have portentous consequences for generations to come. More often than not such issues are emotionally hyper-charged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, and sentiments run high. The Courts have, however, as a part of their obligatory duty, to decide them. While dealing with them the courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the long term interests of the society as a whole. Such problems cannot always be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them. The present is an issue of the kind.

398. It is for the first time that a Nine-Judge Bench has been constituted to consider issues arising out of the provisions for reservations in the services under the State under Article 16 of the Constitution. The obvious purpose is to reconsider, if necessary, the propositions of law so far laid down by this Court on the various aspects of the subject. While, therefore, it may be true that everything is at large and the Court is not inhibited in its approach and conclusions by the precedents, the view taken so far on certain facets of the subject, may be hard to disregard on the principle of stare decisis. This will be more so where certain situations have crystallised and have become a part of the social psyche over a period of time. They may be unsettled only at the risk of creating avoidable problems.

399. The reservation in State employment is not a phenomenon unknown to this country. It is traceable to a deliberate policy of affirmative action or positive discrimination adopted in some parts of the country as early as in the beginning of this century. It is equally known to the employment under the Central Government where reservations in favour of the Scheduled Castes and Scheduled Tribes have been in existence for a considerable time now. The reasons why the issue has assumed agitational proportion on account of the present reservations, may be varied. While it is true that the Court is concerned with the interpretation of the provisions of the Constitution on the subject and not either with the causes of the turmoil or the consequence of the interpretation of the law, it is equally true that the Constitution being essentially a political document, has to be interpreted to meet the 'felt necessities of the time'. To interpret it, ignoring the social, political, economic and cultural realities, is to interpret it not as a vibrant document alive to the social situation but as an immutable cold letter of law unconcerned with the realities. Our Constitution, unlike many others, incorporates in it the framework of the social change that is desired to be brought about. The change has to be ushered in as expeditiously as possible but at the same time with the least friction and dislocation in national life. The duty to bring about the smooth change over is cast on all institutions including the judiciary. A deep knowledge of social life with its multitudinous facets and their interactions, is necessary to decide social issues like the present one. A superficial approach will be counterproductive.

THE GROUND REALITIES

400. Because of its pernicious caste system which may truly be described as its original sin, the Indian society has, for ages, remained stratified. The origin of the caste system is shrouded in speculation, neither the historians nor the sociologists being able to trace it in its present form to any particular period of time or region, or to a specific cause or causes. The fact, however, remains that it consists of mobility-tight hierarchical social compartments. Every individual is born in and, therefore, with a particular caste which he cannot change. Hitherto, he had to follow the occupation assigned to his caste and he could not even think of changing it. The mobility to upper caste is forbidden, even if today he pursues the professions and occupations of the upper caste. He continues to be looked upon as a member of the lower caste even if his achievements are higher than of those belonging to the higher castes. In social intercourse, he has to take his assigned caste-place. The once casteless and uni-religious Indian society of Vedic times became multi-factious and multi-religious mainly on account of the rebellion of the lower castes against the tyranny of the caste system and their exploitation by the higher castes. Various sects emerged within the Hindu fold itself to challenge the inequitous system. Distinct religions like Buddhism, Jainism and Sikhism were born as revolts against casteism. When, therefore, first Islam and then Christianity made their entries here and ruled this country, many from the lower castes embraced them to escape the tyranny and inequity, while some from the higher castes for pelf and power. However, i the change of religion did not always succeed in eliminating castes. The converts carried with them their castes and occupations to the new religions. The result has been that even among Sikhs, Muslims and Christians casteism prevails in varying degrees in practice, their preachings notwithstanding. Only Zoroastrianism is an exception to the rule; but that is because entry into it by conversion is impermissible. Casteism has thus been the bane of the entire Indian society, the difference in its rigidity being of a degree varying from religion to religion and from region to region.

401. One of the worst effects of casteism with which we are directly concerned in the present case, was that access to knowledge and learning was denied to the lower castes, for centuries. It was not till the advent of the British Rule in this country that the doors of education were opened to them as well as to women who were considered as much disentitled to education as the Shudras. Naturally, all the posts in the administrative machinery (except those of the menials) were manned by the higher castes, which had the monopoly of learning. The concentration of the executive power in the hands of the select social groups had its natural consequences. The most invidious and self-perpetuating consequence was the stranglehold of a few high castes over the administration of the country from the lower to the higher rungs, to the deliberate exclusion of others. Consequently, all aspects of life were controlled, directed and regulated mostly to suit the sectional interests of a small section of the society which numerically did not exceed 10% of the total population of the country. The state of the health of the nation was viewed through their eyes, and the improvement in its health was effected according to their prescription. It is naive to believe that the administration was carried on impartially, that the sectional interests were subordinated to the interests of the country and that justice was done to those who were outside the ruling fold. This state of affairs continues even till this day.

402. To accept that after the inauguration of the Constitution and the introduction of adult franchise, there has been a change in the administrative power- balance is to be unrealistic to the point of being gullible. Undoubtedly, the lower castes and classes who constitute the overwhelming majority of no less than 75% of the population have secured for the first time in the history of this country, an advantage in terms of political leverage on account of their voting strength. We do see today that the political executive is not only fairly representative of the lower classes but many times dominantly so. But that is on account of the voting power and not on account of social, educational or economic advancement made by them. The entry into the administrative machinery does not depend on voting strength but on the competitive attainments requisite for the relevant administrative field and post. Those attainments can be had only as a result of the cumulative progress on social, educational and economic fronts. Political power by itself cannot usher in such progress. It has to be exercised to bring about the progress. The only known medium of exercising the power is the administrative machinery. If that machinery is not sympathetic to the purpose of the exercise, the political power becomes ineffective, and at times is also rendered impotent. The reason why, after forty-four years of Independence and of vesting of political power in the hands of the people, the same section which dominated the nation's affairs earlier, continues to do so even today, lies here.

403. The paradoxical spectacle of political power being unable to deliver the goods to whom it desires, is neither unique nor new to this country. This has happened and happens whenever the implementing machinery is at cross purposes with the political power. Faced with the hostility of the administrative-executive to their plans for reform, realising the inequitous distribution of posts in the administration between different castes and communities, and being genuinely interested in lifting the disadvantaged sections of the society in their States, the enlightened Rulers of some of the then Princely States took initiative and introduced reservations in the administrative posts in favour of the backward castes and communities since as early as the first quarter of this century. Mysore and Kolhapur were among the first to do so. On account of the movement for social justice and equality started by the Justice Party, the then Presidency of Madras [which then comprised the present State of Tamil Nadu, parts of -the present Andhra Pradesh and Kerala] initiated reservations in the Government employment in 1921. It was followed by the Bombay Presidency which then comprised the major parts of the present States of Maharashtra, Karnataka and Gujarat. Thus the first quarter of this century saw reservations in Government employment in almost whole of the Southern India. It has to be noted that these reservations were not only in favour of the depressed classes which are today known as the Scheduled Castes, but also in favour of other backward castes and classes including what were then known as the intermediate castes. The policy did arouse hostility and resistance of the higher castes even at that time. The agitation against reservations to-day is only a new incarnation of the same attitude of hostility. The resistance is understandable. It springs from the real prospect of the loss of employment opportunities for the eligible young. But the deeper reason of the high castes for opposing the reservation may be the prospect of losing the hitherto exclusive administrative power and having to share it with others on an increasing scale. When it is realised that in a democracy, the political executive has a limited tenure and the administrative executive wields the real power, [they can truly be described as the permanent politicians], the antipathy to reservation on a pitched note, propelled by the prospective loss of power, is quite intelligible. The loss of employment opportunities can be made good by generating employment elsewhere and by adopting a rational economic structure with planned economy, planned population and planned education. That is where all sections of the society -whether pro or anti-reservation should concentrate. For even if all available posts are reserved or dereserved, they will not provide employment to more than an infinitesimal number of either of the sections. Unfortunately, it is not logic and sanity, but emotions and politics which dominate the issue. The loss of exclusive political power wielded through administrative machine, however, cannot be avoided except by perpetuating the status quo.

404. The consequences of the status quo are startling and ruinous to the country. One of the major causes of the backwardness of the country in all walks of life is the denial to more than 75% of the population, of an opportunity to participate in the running of the affairs of the country. Democracy does not mean mere elections. It also means equal and effective participation in shaping the destiny of the country. Needless to say that where a majority of the population is denied its share in actual power, there exists no real democracy. It is a harsh reality. It can be mended not by running away from it or by ignoring it, but by taking effective workable remedial measures. Those who point to the past achievements and the present progress of the country, forget that these achievements and the progress are by a tiny section of the society who got an opportunity to realise and use their talent. If all sections of the society had such opportunity, this country's achievements in all fields and walks of life would have been many times more. That this is a realistic estimate and not a mere rhetoric is proved by history. Dr. Ambedkar belongs to the very recent past. If what is handed down to us as history is to be believed, then the epic 'Mahabharata' was penned by Vyasa, who was born of a fisher woman; 'Ramayana' was authored by Valmiki, who belonged to a tribe forced to live by depredations. The immortal poet Kalidasa's ancestry is not known. These few instances demonstrate that intelligence, perception, character, scholarship and talent are not a monopoly of any section of the society. Given opportunity, those who are condemned to the lowliest stations in life can rise to the loftiest status in society. One can only guess how much this country has lost for want of opportunities to the vast majority all these centuries. This aspect of the present and the past history has a bearing on the 'merit-contention' advanced against reservations.

405. In this connection, it will be worthwhile quoting what Pandit Nehru had to say on the subject in 'Discovery of India'':

Therefore, not only must equal opportunities be given to all, but special opportunities for educational, economic and cultural growth must be given to backward groups so as to enable them to catch up with those who are ahead of them. Any such attempt to open the door of opportunities to all in India will release enormous energy and ability and transform the country with amazing speed.

406. The inequalities in Indian society are born in homes and sustained through every medium of social advancement. Inhuman habitations, limited and crippling social intercourse, low-grade educational institutions and degrading occupations perpetuate the inequities in myriad ways. Those who are fortunate to make their escape from these all-pervasive dragnets by managing to attain at least the minimum of attainments in spite of the paralysing effects of the debilitating social environment, have to compete with others to cross the threshold of their backwardness. Are not those attainments, however low by the traditional standards of measuring them, in the circumstances in which they are gained, more creditable? Do they not show sufficient grit and determination, intelligence, diligence, potentiality and inclination towards learning and scholarship? Is it fair to compare these attainments with those of one who had all the advantages of decent accommodation with all the comforts and facilities, enlightened and affluent family and social life, and high quality education? Can the advantages gained on account of the superior social circumstances be put in the scales to claim merit and flaunted as fundamental rights? May be in many cases, those coming from the high classes have not utilised their advantages fully and their score, though compared with others, is high, is in fact not so when evaluated against the backdrop of their superior advantages - may even be lower. With the same advantages, others might have scored better. In this connection, Dr. Ambedkar's example is worth citing. In his matriculation examination, he secured only 37.5% of the marks, the minimum for passing being 35% [See: 'Dr. Ambedkar' by Dr. Dhananjay Keer]. If his potentialities were to be judged by the said marks, the country would have lost the benefit of his talent for all times to come.

407. Those who advance merit contention, unfortunately, also ignore the very basic fact - (though in other contexts, they may be the first to accept it) - that the traditional method of evaluating merit is neither scientific nor realistic. Marks in one-time oral or written test do not necessarily prove the worth or suitability of an individual to a particular post, much less do they indicate his comparative calibre. What is more, for different posts, different tests have to be applied to judge the suitability. The basic problems of this country are mass-oriented. India lives in villages, and in slums in towns and cities. To tackle their problems and to implement measures to better their lot, the country needs personnel who have first-hand knowledge of their problems and have personal interest in solving them. What is needed is empathy and not mere sympathy. One of the major reasons why during all these years after Independence, the lot of the downtrodden has not even been marginally improved and why majority of the schemes for their welfare have remained on paper, is perceptibly traceable to the fact that the implementing machinery dominated as it is by the high classes, is indifferent to their problems. The Mandal Commission's lament in its report, that it did not even receive replies to the information sought by it from various Governments, departments and organizations on the caste-wise composition of their services, speaks volumes on the point. A policy of deliberate reservations and recruitment in administration from the lower classes, who form the bulk of the population and whose problems primarily are to be solved on a priority basis by any administration with democratic pretensions, is therefore, not only eminently just but essential to implement the Constitution, and to ensure stability, unity and prosperity of the country.

408. What should further not be forgotten is that hitherto for centuries, there have been cent per cent reservations in practice in all fields, in favour of the high castes and classes, to the total exclusion of others. It was a purely caste and class-based reservation. The administration in the States where the reservations are in vogue for about three quarters of a century now, further cannot be said to be inferior to others in any manner. The reservations are aimed at securing proper representation in administration to all sections of the society, intelligence and administrative capacity being not the monopoly of any one class, caste or community. This would help to promote healthy administration of the country avoiding sectarian approaches and securing the requisite talent from all available sources.

409. The assumption that the reservations lead to the appointment or admission of non-meritorious candidates is also not factually correct. In the first instance, there are minimum qualifying marks prescribed for appointment/admission. Secondly, there is a fierce competition among the backward class candidates for the seats in the reserved quota. This has resulted in the cut-off marks for the seats in the reserved quota reaching near the cut-off line for seats in the general quota as some surveys made on the subject show. A sample of such surveys made for the State of Tamil Nadu by Era Sezhian and published in the issue of the 'Hindu' dated 8th October, 1990 may be reproduced here:

Selection to professional courses: Cut-off level-------------------------------------------------------------------------- Course of Study Open Backward Most Scheduled Competition 'Backward Caste -------------------------------------------------------------------------- Engineering Course [Anna University Computer Science 97.98% 96.58% 93.25% 84.38% Electronics 97.74% 96.08% 92.16% 82.22% Electrical 95.84% 95.42% 91.48% 81.98% Mechanical Engg.95.78% 94.10% 90.66% 79.21% Medical Course[University of Madras] M.B.B.S. 95.22% 93.18% 89.62% 83.98% Agricultural Course [Agricultural University, Coimbatore] B.Sc. Agri. 90.90% 90.08% 86.10% 78.04% B.E. Agri 92.66% 91.96% 87.46% 76.14% Veterinary [Tamil Nadu Veterinary & Animal Sciences University] BVSc. 94.90% 93.48% 91.18% 85.24% BFSc. 96.96% 95.58% 95.02% 93.02% --------------------------------------------------------------------------

410. By what logic can it be said that the above marks secured by the candidates from the backward classes are not meritorious?

411. The reservations by their very nature have, however, to be imaginative, discriminating and gradual, if they are to achieve their desired goal. A dogmatic, unrealistic and hasty approach to any social problem proves, more often than not, self-defeating. This is more so when ills spread over centuries are sought to be remedied. It is not possible to remove the backlog in representation at all levels of the administration in one generation. More difficult it is to do so in all fields and all branches of administration, and at the same pace. It will not only be destructive of the object of reservations but will positively be harmful even to those for whom it is meant -not to speak of the society as a whole. It must be remembered that some individual exceptions apart, even the advanced classes have not made it to the top in one generation. Such exceptions are found in backward classes as well.

PHILOSOPHY AND OBJECTIVES OF RESERVATIONS

412. The aim of any civilised society should be to secure dignity to every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities in any walk of social life is a denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the individual is dented in direct proportion to his deprivation of the equal access to social means. The democratic foundations are missing when equal opportunity to grow, govern, and give one's best to the society is denied to a sizeable section of the society. The deprivation of the opportunities may be direct or indirect as when the wherewithals to avail of them are denied. Nevertheless, the consequences are as potent.

413. Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the preamble of the Constitution, of fraternity assuring the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all.

414. Likewise, the social and political justice pledged by the Preamble of the Constitution to be secured to all citizens, will remain a myth unless first economic justice is guaranteed to all. The liberty of thought and expression also will remain on paper in the face of economic deprivations. A remunerative occupation is a means not only of economic upliftment but also of instilling in the individual self-assurance, self-esteem and self-worthiness. It also accords him a status and a dignity as an independent and useful member of the society. It enables him to participate in the affairs of the society without dependence on, or domination by, others, and on an equal plane depending upon the nature, security and remuneration of the occupation. Employment is an important and by far the dominant remunerative occupation, and when it is with the Government, semi-Government or Government-controlled organisation, it has an added edge. It is coupled with power and prestige of varying degrees and nature, depending upon the establishment and the post. The employment under the State, by itself, may, many times help achieve the triple goal of social, economic and political justice.

415. The employment - whether private or public - thus, is a means of social levelling and when it is public, is also a means of directly participating in the running of the affairs of the society. A deliberate attempt to secure it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to them as ordained by the Preamble of the Constitution.

416. It is no longer necessary to emphasise that equality contemplated by Article 14 and other cognate Articles including Articles 15(1), 16(1), 29(2) and 38(2) of the Constitution, is secured not only when equals are treated equally but also when unequals are treated unequally. Conversely, when unequals are treated equally, the mandate of equality before law is breached. To bring about equality between the unequals, therefore, it is necessary to adopt positive measures to abolish inequality. The equalising measures will have to use the same tools by which inequality was introduced and perpetuated. Otherwise, equalisation will not be of the unequals. Article 14 which guarantees equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalising measures, The founders of the Constitution, however, thought it advisable to incorporate another provision, viz., Article 16 specifically providing for equality of opportunity in matters of public employment. Further they emphasised in Clause (4) thereof that for equalising the employment opportunities in the services under the State, the State may adopt positive measures for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in such services. By hind sight, the foresight shown in making the provision specifically, instead of leaving it only to the equality provision as under the U.S. Constitution, is more than vindicated. In spite of decisions of this Court on almost all aspects of the problem, spread over the past more than forty years now, the validity, the nature, the content and the extent of the reservation is still under debate. The absence of such provision may well have led to total denial of equal opportunity in the most vital sphere of the State activity. Consequently, Article 38(2) which requires the State in particular to strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations, and Article 46 which enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people, and to protect them from social injustice and all forms of exploitation, and Article 335 which requires the State to take into consideration the claims of the Scheduled Castes and Scheduled Tribes in making the appointments to services and posts under the Union or States, would have, all probably remained on paper.

417. The trinity of the goals of the Constitution, viz., socialism, secularism and democracy cannot be realised unless all sections of the society participate in the State power equally, irrespective of their caste, community, race, religion and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures.

418. Under Article 16(4), the reservation in the State employment is to be provided for a 'class of people' which must be 'backward' and 'in the opinion of the State'' is ' 'not adequately represented' in the services of the State. Under Article 46, the State is required to ' 'promote with special care' the 'educational and economic interests' of the 'weaker sections' ' of the people and 'in particular', of the Scheduled Castes and Scheduled Tribes, and 'to protect' them from 'social injustice' and 'all forms of exploitation'. Since in the present case, we are not concerned with the reservations in favour of the SCs/STs, it is not necessary to refer to Article 335 except to point out that, it is in terms provided there that the claims of SCs/STs in the services are to be taken into consideration, consistently with the maintenance of efficiency of administration. It must, therefore, mean that the claims of other backward class of citizens and weaker sections must also be considered consistently with the maintenance of the efficiency. For, whomsoever, therefore, reservation is made, the efficiency of administration is not to be sacrificed, whatever the efficiency may mean. That is the mandate of the Constitution itself.

419. The various provisions in the Constitution relating to reservation, therefore, acknowledge that reservation is an integral part of the principle of equality where inequalities exist. Further they accept the reality of inequalities and of the existence of unequal social groups in the Indian society. They are described variously as 'socially and educationally backward classes' [Article 15(4) and Article 340], 'backward class' [Article 16(4)] and 'weaker sections of the people'' [Article 46]. The provisions of the Constitution also direct that the unequal representation in the services be remedied by taking measures aimed at providing employment to the discriminated class, by whatever different expressions the said class is described. How does one identify the discriminated class is a question of methodology. But once it is identified,' the fact that it happens to be a caste, race, or occupational group, is irrelevant. If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination. When, in such circumstances, provision is made for reservations, for example, on the basis of caste, it is not a reservation in favour of the caste as a ' 'caste'' but in favour of a class or social group which has been discriminated against, which discrimination cannot be eliminated, otherwise. What the Constitution forbids is discrimination 'only' on the basis of caste, race etc. However, when the caste also happens to be a social group which is 'backward' or 'socially and educationally backward' or a 'weaker section', this discriminatory treatment in its favour, is not only on the basis of the caste.

420. The objectives of reservation may be spelt out variously. As the U.S. Supreme Court has stated in different celebrated cases, viz., Oliver Brown et. al. v. Board of Education of Topeka et. al. , Spottswood Thomas Boiling et. al. v. C. Melvin Sharpe et. al. , Marco Defunis et. al, v. Charles Odegaard , Regents of the University of California v. Allan Bakke , H. Earl Fully love et. al. v. Philip M. Klutznick , and Metro Broadcasting, Inc. v. Federal Communications Commission [111 L Ed 2d 445] rendered as late as on June 27, 1990, the reservation or affirmative action may be undertaken to remove the 'persisting or present and continuing effects of past discrimination'; to lift the 'limitation on access to equal opportunities'; to grant 'opportunity for full participation in the governance' of the society; to recognise and discharge 'special obligations' towards the disadvantaged and discriminated social groups''; 'to overcome substantial chronic under-representation of a social group'; or 'to serve the important governmental objectives''. What applies to American society, applies ex proprio vigore to our society. The discrimination in our society is more chronic and its continuing effects more discernible and disastrous. Unlike in America, the all pervasive discrimination here is against a vast majority.

421. As has been pointed out earlier, our Constitution itself spells out the important objectives of the State Policy. There cannot be a more compelling goal than to achieve the unity of the country by integration of different social groups. Social integration cannot be achieved without giving equal status to all. The administration of the country cannot also be carried on impartially and efficiently without the representation in it of all the social groups and interests, and without the aid and assistance of all the views and social experiences. Neither democracy nor unity will become real, unless all sections of the society have an equal and effective voice in the affairs and the governance of the country.

422. In a society such as ours where there exist forward and backward, higher and lower social groups, the first step to achieve social integration is to bring the lower or backward social groups to the level of the forward or higher social groups. Unless all social groups are brought on an equal cultural plane, social intercourse among the groups will be an impossibility. Inter-marriage as a matter of course and without inhibitions is by far the most potent means of effecting social integration. Inter-marriages between different social groups would not be possible unless all groups attain the same cultural level. Even in the same social group, marriages take place only between individuals who are on the same cultural plane. Culture is a cumulative product of economic and educational attainments leading to social accomplishment and refinement of mind, morals and taste. Employment and particularly the governmental employment promotes economic and social advancement which in turn also leads to educational advancement of the group. Though it is true that economic and educational advancement is not necessarily accompanied by cultural growth, it is also equally true that without them, cultural advancement is difficult. Employment is thus an important aid for cultural growth; To achieve total unity and integration of the nation, reservations in employment are, therefore, imperative, in the present state of our society.

423. Under the Constitution, the reservations in employment in favour of backward classes are not intended either to be indiscriminate or permanent. Article 16(4) which provides for reservations, also at the same time prescribes their limits and conditions. In the first place, the reservations are not to be kept in favour of every backward class of citizens. It is only that backward class of citizens which, in the opinion of the State, is 'not adequately represented' in the services under the State, which is entitled to the benefit of the reservations. Secondly, and this follows from the first, even that backward class of citizens would cease to be the beneficiary of the reservation policy, the moment the State comes to the conclusion that it is adequately represented in the services.

THE IMPUGNED