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TMI Blog1962 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... Mysore on the July 31, 1962, under Art. 15 (4). Out of the twenty-three petitioners, six had applied for admission to the Pre-professional Class in Medicine in the Medical Colleges affiliated either to the Mysore University or to the Karnatak University, and seventeen had applied for admission to the First Year of the 5 Year integrated course leading to the Degree of B. E. in the University of Mysore. According to the petitioners, but for the reservation made by the impugned order, they would have been entitled to the admission in the respective colleges for which they had applied. As a result of the reservation made by the said order, students who have secured less percentage of marks have been admitted, but not the petitioners. That, in brief, is the petitioners' grievance and they urge that the impugned order which has denied them the facility of admission in the respective colleges is void under Arts. 15 (1) and 29 (2) and should not be enforced against them. Accordingly, the petitioners pray that a writ of mandamus and/or any suitable writ or direction should be issued against respondent No. 1, the State of Mysore (hereinafter called the State), and the two Selection Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hindus and Muslims, Christians and Jains, were classified as socially and educationally Backward Classes. It appears that 65% of the seats were reserved for these socially and educationally Backward Classes and Scheduled Castes and Tribes. These orders were challenged before the Mysore High Court in the case of Ramakrishna Singh Ram Singh v. State of Mysore(A.I.R. 1960 Mysore 338). The High Court upheld the pleas raised by the petitioners and quashed the impugned orders. In the result, the High Court directed that the applications made by the petitioners for admission to the respective colleges should be considered without reference to the said orders, but subject to the reservation for Scheduled Castes and Scheduled Tribes made therein. The State then appointed a Committee called the Mysore Backward Classes Committee with Dr. R. Nagan Gowda as its Chairman, to investigate the problem and advise the Government as to the criteria which should be adopted in determining the educationally and socially Backward Classes, and the special provisions which should be made for their advancement. The Committee made an interim report, and in- the light of the said report, the State passed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... variations in the recommendations made by the Committee. It held that Lingayats and Bhunts who formed part of Vokkaligas, should be treated as backward. In that connection, the State noticed the fact that the recommendation of the Committee in respect of the said two communities was not unanimous, and it observed that a large percentage of Lingayat population lives in rural areas and most of them are engaged in agriculture and mannual labour and suffer from all the consequences of illiteracy and poverty. In regard to the Bhunts, the State thought that they could not be distinguished from the rest of the Vokkaligas. The order then adds that Satanis, Nayars and Zoreastrians whose average according to the educational test prescribed by the Committee was as per thousand of population (whereas that of Lingayats is 7. 1) need not be treated as backward. The order then examines the question as to the percentage which should be reserved, and it rejects the Committee's recommendation of reservation of 68% all-told on the ground that such a large percentage of reservation would not be in the larger interests of the State. That is why, according to the order, 48% was fixed as the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Art. 340 (1)]. According to the Commission, the relevant factors to consider in classifying Backward Classes would be their traditional occupation or profession; the percentage of literacy 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. The Commission also thought that the social position which a community occupies in the caste hierarchy would also have to be considered, as well as its representation in Government service or in the industrial sphere. (p. 47). According to the Commission., the causes of educational backwardness amongst the educationally and socially backward communities were:- 1. Traditional apathy for education on account of social and environmental conditions or occupational handicaps. 2. Poverty and lack of educational institutions in rural areas. 3. Living in inaccessible areas. 4. Lack of adequate educational aids, such as free studentships, scholarships and monetary grants. 5. Lack of residential hostel facilities. 6. Unemployment among the educated which acts as a damper on the desir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to help the extremely poor and deserving from all communities. Care, however, being taken to give preference to those who come from the traditionally neglected social classes. Even though the Chairman thus expressed his distress in very strong language over the basis adopted by the Commission, he ultimately agreed to the proposal of the Commission for the reservation of seats. for Backward Classes to the extent of 70 percent. The Report made by the Backward Classes Commission along with the Chairman's covering letter was considered by the Central Government in due course. The Central Government apparently did not feel satisfied about the approach adopted by the Commission in determining as to who should be treated as Backward Classes under Article 15(4). The Memorandum issued by the Government of India on the Report of the Commission points out that it cannot be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of' the specified castes as backward may serve to maintain and even perpetuate the existing distinctions on the basis of castes. Besides, the memorandum goes on to add that som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey was made with the help of material collected at the time of 1951 Census with a view to find out whether occupations could be adopted as suitable basis for deter- mining social and educational backwardness. A preliminary analysis of the data collected indicated that it would be possible to draw up a list of socially and educationally backward occupations on the basis of:-- (a) any non-agricultural occupations in any State in India in which 500% or more of the persons belong to the Scheduled Castes or the Scheduled Tribes; or (b) any non-agricultural occupations in which literacy percentage of the persons depending thereon Is less than 500% of the general literacy in the State. In his Report, the Commissioner has adversely commented on the classification made by the State in the impugned order. It now remains to consider the report made by the Nagan Gowda Committee appointed by the State. This Report proceeds on the basis that higher social status has generally been accorded on the basis of caste for centuries; and so, it takes the view that the low social position of any community is, therefore, mainly due to the caste system. According to the Report, there are ample rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (First Amendment) Act '1951. The object of this amendment was to bring Articles 15 and 29 in line with Art. 16(4). It will be recalled that in the case of The State of v. Srimathi Champakam Dorairajan([1951] S.C.R. 525) the validity of the Government order issued by the Madras Government fixing certain proportions in which students seeking for admissions to the Engineering and Medical Colleges in the State should be admitted, was challenged. The said Government Order was on the face of it a communal order fixing the admissions in the Stated proportion by reference to the communities of. the candidates. This order was struck down by the Madras High Court and the decision of the Madras High Court was confirmed by this Court in appeal, on the ground that the fundamental rights guaranteed by Articles 15(1) and 29(2) were not controlled by any exception, and that since there was no provision under Art. 15 corresponding to Art. 16(4), the impugned order could not be sustained. It was directly as a result of this decision that Art. 15 was amended and Art. 15(4) was added. Thus, there is no doubt that Art. 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de which would be implemented in their discretion by the Union and the State Government and not by the President. Thus Art. 340(1) itself shows that it is the Union or the State that has to take action in pursuance of the recommendations made, and so, the argument that the President alone has to act in this matter cannot be accepted. Then it is urged that even if special provision can be made by the State under Art. 15(4), the said provision must be made not by an executive order but. by legislation. This argument. is equally misconceived. Under Art. 12, the State includes the Government and the Legislature of each of the States, and so, it would be unreasonable to suggest that the State must necessarily mean the Legislature and not the Government. Besides, where the Constitution intended that a certain action should be taken by legislation and not by executive action, it has adopted suitable phraseology in that behalf. Article 16(3) and (5) are illustrations in point. Both the said subclauses of Art. 16, in terms, refer to the making of the law by the Parliament in respect of the matters covered by them. Similarly, Articles 341 (2) and 342 (2) expressly refer to a law being mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This provision contemplates that some Backward Classes may by the Presidential order be included in Scheduled castes and Tribes. That helps to bring, out the point that the Backward Classes for whose improvement special provision is contemplated, by Art. 15 (4) are in the matter of their,, backwardness comparable to Scheduled Castes and Scheduled Tribe In considering the scope and extent of the expression 'backward classes' under Art. 15(4), it is necessary to remember that the concept of backwardness is not intended to be relative in the sense that any classes who arc backward in relation to the most advanced classes of the society should be included in it. If such relative tests were to be applied by reason of the most advanced classes, there would he several layers or strata of backward classes and each one of them may claim to be included under Art. 15(4). This position is not disputed before us by the learned Advocate- General for the State. The backwardness under Art. 15(4) must be social and educational. It is not either social or educational but it is both social and educational; and that takes us to the question as to how social and educational backwardness has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming groups may be socially backward. That is why we think that 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 made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty, to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows The relevance of both caste and poverty in determining the backwardness of citizens. The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, on the order as it stands there can be no room for doubt that the classification of backward and more backward classes was made by the State Government only on the basis of their castes which basis was regarded as a practicable method. It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committees, nor the orders passed by the State Government on July 10, 1961, and July 31, 1962, afford any indication as to how any test other than that of the caste was applied in deciding the question. The learned Advocate-General has contended that the statement in the preamble of' the order of July 10, 1961 should not be literally construed and he has argued that the words used in the relevant portion are inartistic and he has suggested that the order is not based on the sole basis of castes. We are not impressed by this argument. We have considered both the orders in the light of the Report' and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification of the socially backward classes of citizens made by the State proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of citizens whose average of student population works below 50% of the State average are obviously educa- tionally back-ward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average. It will be recalled that the Nagan Gowda Committee had recommended that the Lingayats should not be treated as Backward Classes. The State has decided otherwise, and in doing so, the State has taken the view that the figures arrived at by the Committee should be corrected to the nearest integer as, in the nature of things, says the order of July 10, 1960, it is not possible to attain absolute mathematical precision in making such assessments. That is how the State average was raised from (6.9 to 7 per thousand. Even after increasing the State average to 7, the position with regard to Lingayat community was that its average of student, population was 7.1 per thousand according to the Committee's calculations and according to the decision of the State 7, and yet the Lingayats as a community have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State is treated as backward, and that illustrates how the order in fact divides the population of the State into most advanced and the rest, and puts the latter into two categories of Backward and More Backward. The classification of the two categories, therefore, is not warranted by Art. 15(4). That takes us to the question about the extent of the special provision which it would be competent to the State to make under Art. 15(4). Article 15(4) authorises the State to make any special provision for the advancement of the Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. The learned Advocate-General contends. that this Article must be read in the light of Art. 46, and he argues that Art. 15(4) has deliberately and wisely placed no limitation on the State in respect of the extent of special provision that it should make. Art. 46 which contains a directive principle, provides that the State shall 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 shall protect them from social injustice and all form,% of exploitation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes , and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored, In this connection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well-known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessary that the demand for higher education which is thus increasing from year to year must be adequately met and properly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must not be lowered. The large demand for education maybe met by starting larger number of educational institutions, vocational schools and polytechnics. But it would be against the national interest to exclude from the portals of our Universiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal decades. The Committee further observed that the representatives of the upper classes did not complain about any lack of efficiency i n the offices recruited by reservation (p. 135). This opinion, however, is plainly inconsistent with what is bound to be the inevitable consequence of reservation in higher university education. If admission to professional and technical colleges is unduly liberalised it would be idle to contend that the quality of our graduates will not suffer. That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker section's of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4 must be within reasonable limits. The interests of weaker sections of society which are, a first charge on the states and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the authority conferred oil it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not 'permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4). The learned Advocatc-General has made an earnest and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4). It necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental; rights, guaranteed tinder Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done. Whilst we are dealing with this question, it would be relevant to add that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell to be considered in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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