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TMI Blog1985 (5) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to specific facts. But, institutions profit by well-meaning innovations. The facts will appear before the Commission and it will evolve suitable tests in the matter of reservations. I cannot resist expressing the hope that the deep thinking and sincerity which has gone into the formulation of the opinions expressed by my learned Brethren will not go waste. The proposed Commission should give its close application to their weighty opinions. Mine is only a skeletal effort. I reserve the right to elaborate upon it, but the chances of doing so are not too bright. 2. I would state my opinion in the shape of the following propositions : 1. The reservation in favour of scheduled castes and scheduled tribes must continue as at present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation. 2. The means test, that is to say, the test of economic backwardness ought to be made applicable even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass of citizens socially and educationally backward. As the awareness of concessions and benefits grows with consequent frustration on account of their non-availability confrontation develops amongst various classes of society. The Constitution promised an egalitarian society. At the dawn of independence Indian Society was a compartmentalised society comprising groups having distinct and diverse life styles. It was a caste ridden stratified hierarchical society. Though this is well accepted, the concept of caste has defied a coherent definition at the hands of jurists or sociologists. 4. In the early stages of the functioning of the Constitution, it was accepted without dissent or dialogue that caste furnishes a working criterion for identifying socially and educationally backward class of citizens for the purpose of Article 15(4). 5. This was predicated on a realistic appraisal that caste as a principle of social order has persisted over millennia if much more disorderly and asymmetrical in practice than classical Hindu socio legal theory depicted it'. Hutton-Caste in India : Its nature, function and Origin 1961 Language of Article 15(4) refers to 'class' and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly backward. The problem of determining who are socially backward classes, is undoubtedly very complex, but the classification of socially backward citizens on the basis of their castes alone is not permissible under Article 15(4). The Court could foresee the danger in treating caste as the sole criterion for determining social and educational backwardness. The importance of the judgment lies in realistically appraising the situation when it uttered the harsh but unquestionable truth that economic backwardness would provide a much more reliable yardstick for determining social backwardness because more often educational backwardness is the outcome of social backwardness. The Court drew clear distinction between 'caste' and 'class'. The attempt at finding a new basis for ascertaining social and educational backwardness in place of caste reflected in this decision. Clairvoyance in this behalf displayed in our opinion is praiseworthy. 10. In T. Devadesan v. The Union of India and Anr. (1965)IILLJ560SC the petitioner challenged the carry forward rule in the matter of reserved seats in the Central Secretariat Service as being violative of Article 14 and 16 of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matter was placed before the court and the decision is reported in Triloki Nath and Anr. v. State of Jammu Kashmir and Ors. [1969] 1 S.C.R. 103 The Court observed that the expression 'backward class' is not used as synonymous with 'backward caste' or 'backward community'. The members of an entire caste or community may, in the social, economic and educational scale of values at a given time, be backward and may, on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation, the expression class' may mean a homogenous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like, but for purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted because it would directly offend the Constitution. The caste as the basis for determining backwardness rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R761 reservations in favour of rural areas was held to be unsustainable on the ground that it cannot be said as a general proposition that rural areas represents socially and educationally backward classes of citizens. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. 17. In State of Kerala and Anr. v. N-M. Thomas and Ors. (1976)ILLJ376SC the constitutional validity of Rule 13AA giving further exemption of two years to members belonging to Scheduled Tribes and Scheduled Castes in the service from passing the tests referred to in Rule 13 or Rule 13A, was questioned. The High Court struck down the rule. Allowing the State appeal, Mathew, J. in his concurring judgment held that to give equality of opportunity for employment to the members of Scheduled Castes and Scheduled Tribes, it is necessary to take note of their social, educational and economic backwardness. Not only is the Directive principles embodied in Article 46 binding on the law makers as ordinarily understood, but it should equally inform and illuminate the approach of the court when it makes a decision as the court also is State within the meaning of Article 12 and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be more limited as a vantage point then I naively assumed at the outset. They act as a balance wheel channelling compensatory policies and accommodating them to other commitments, but it is the political process that shapes the larger contour of these policies and gives them their motive force. Official doctrine-judicial pronouncements or administrative regulations-proved insufficient guide to the shape of the policies in action and the result they produced.' Marc Galanter-Competing Equalities, 1980 p. XVIII. The Indian social scene apart from being disturbing presented the picture of stratified society hierarchically fragmented. At the lowest rung of the ladder stand Scheduled Castes and Scheduled Tribes and any preferential treatment in their favour has more or less ment with judicial approval. But when it came to preferential treatment or affirmative action or what is also called compensatory discrimination in favour of socially and educationally backward classes of citizens, the caste ridden society raised its ugly face. By its existence over thousands of years, more or less it was assumed that caste should be the criterion for determining social and educational backwardnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment orders based their recommendations used communal units to discriminate the backward class. Rane Commission of Gujarat has chalked out a different path, rejecting caste as the basis for ascertaining social and educational backwardness. The question we must pose and answer is whether caste should be the basis for determining social and educational backwardness. In other words, by what yardstick, groups which are to be treated as socially and educationally backward are to be identified? To simplify the question : should membership of caste signify a class of citizens as being socially and educationally backward? If 'caste' is adopted as the criterion for determining social and educational backwardness does it provide a valid test or it would violate Article 15(1) which prohibits discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. 22. What then is a caste ? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. I.P. Desai : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become sharp, but not so sharp as to bury caste sentiments and ties. 23. If the transformation of the caste structure as herein indicated is realistically accepted, should the caste label be still accepted as the basis for determining social and educational backwardness. In a recent paper by the noted sociologist Shri I.P. Desai (Alas, he is no more), it has been ably argued that not a caste but the class or the social group should be examined with a view to determining their social and educational backwardness. Caste in rural society is more often than not mirrored in the economic power wielded by it and vice vessa. Social hierarchy and economic position exhibit an undisputable mutuality. The lower the caste, the poorer its members. The poorer the members of a caste, the lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power wielded by an individual or class in rural society. Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hestitation, say that if poverty be the cause, caste is the primary index of socia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which vary from one region to the other and their complete coverage is almost impossible. Mandal Commission found a way out by recommending that it' a particular caste has been treated as backward then all its synonyms whether mentioned in the State lists or not should also be treated as backward. Mandal Commission Report Vol. Cli. XII p. 55 Gujarat Government was forced to appoint a second commission known as Rane Commission. Rane Commission took note of the fact that there was an organised effort for being considered socially and educationally backward castes. Rane Commission recalled the observations in Balaji's case that 'Social backwardness is on the ultimate analysis the result of poverty to a very large extent.' The Commission noticed that some of the castes just for the sake of being considered as socially and educationally backward, have degraded themselves to such an extent that, they had no hesitation in attributing different types of vices to and associating other factors indicative of backwardness, with their castes. The Commission noted that the malaise requires to be remedied. The Commission therefore, devised a method for determining socially and ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r special leave against the decision of the Punjab and Haryana High Court in which the reservation of 2-1/2 for admission to Medical and Engineering College in favour of Majhabi Sikhs was challenged by none other than the upper crust of the members of the Scheduled Castes amongst Sikhs in Punjab, proving that the labelled weak exploits the really weaker. Add to this, the findings of the Research Planning Scheme of Sociologists assisting the Mandal Commission when it observed : 'while determining the criteria of socially and educationally backward classes, social backwardness should be considered to be the critical element and educational backwardness to be the linked element though not necessarily derived from the former.' Part 3 Appendix XIII, p. 99 of the Report of the Team The team ultimately concluded that 'social backwardness refers to ascribed status and educational backwardness to achieved status, and it considered social backwardness as the critical element and educational backwardness to be the linked though not derived element.' The attempt is to identify socially and educationally backward-classes of citizens. The caste, as is understood in Hindu Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reamy layer of the backward castes. This has to be avoided at any cost. 29. If poverty is to be the criterion for determining social and educational backwardness, we must deal with a fear expressed by sociologists. It is better to recapitulate these aspects in the words of a sociologist : Now, if the government changes the criteria of reservation from caste to class, persons from the upper strata of the lower castes who are otherwise not able to compete with the upper strata of the upper castes despite the reservations will be excluded from the white collar jobs. And the persons from the lower strata of lower castes will not be able to compete with their counterpart of the upper castes. They too will be excluded. This will bridge the gap which is otherwise widening between the rich and the poor of the upper castes and it will strengthen their caste identity. It will wipe out the small poor strata of the upper castes at the cost of the poor strata of lower castes, and in the name of secularism. In course of time the upper caste will also become the upper class. Such a process would hamper the growth of secular forces. G. Shah IPW January 17, 1983. This fear psychosis i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit the State action would be taken. This does not purport to be an exhaustive essay on guidelines but may point to some extent, the direction in which the proposed Commission should move. O. Chinnappa Reddy, J. 32. Over three decades have passed since we promised ourselves justice, social, economic and political and equality of status and opportunity . Yet, even today, we find members of castes, communities, classes or by whatever name you may describe them, jockeying for position, trying to elbow each other out, and, viewing with one another to be named and recognised as 'socially and educationally backward dashes', to quality for the 'privilege' of the special provision for advancement and the provision for reservation that may be made under Article 15(4) 16(4) of the Constitution. The paradox of the system of reservation is that it has engendered a spirit of self denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining the backward statue. Nowhere else in the world is there competition to assert backwardness and to claim 'we are more backward than you'. This is an unhappy an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution. 34. Before we attempt to lay down any guidelines for the benefit of the Commission proposed to be appointed by the Karnataka Government, will do well to warn ourselves and the proposed Commission against the pitfalls of the 'traditional' approach towards the question of reservation for Scheduled Castes Scheduled Tribes and other backward classes which has generally been superior, elitist and, therefore, ambivalent. A duty to undo an evil which had been perpetrated through the generations is thought 'to betoken a generosity and farsightedness that are rare among nations'. So a superior and patronising attitude is adopted. The result is that the claim of the Scheduled Castes and Scheduled Tribes and other backward classes to equality as a matter of human and constitutional right is forgotten and their rights are submerged in what is described as the 'proferential principle' or 'protective or compensatory discrimination', expression borrowed from American jurisprudence. Unless we get rid of these superior, patronising and paternalist attitudes, what the French Call Le mentalite hierarchique, it is difficult to truly appreciate the proble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flower he cannot be, autumn flower he may be. Why than, should he be stopped at the threshold on an alleged meritarian principle? The requirements of efficiency may always be safeguarded by the prescription of minimum standards. Mediocrity has always triumphed in the past in the case of the upper classes. But why should the so-called meritarian principle be put against mediocrity when we come to Scheduled Castes, Scheduled Tribes and backward classes? 36. Efficiency is very much on the lips of the privileged whenever reservation is mentioned. Efficiency, it seems, will be impaired if the total reservation exceeds 50 per cent; efficiency, it seems, will suffer if the 'carry forward' rule is adopted; efficiency, it seems, will be injured if the rule of reservation is extended to promotional posts. From the protests against reservation exceeding 50 per cent or extending to promotional posts and against the carry-forward rule, one would think that the civil service is a Heavenly Paradise into which only the archangels, the chosen of the elite, the very best may enter and may be allowed to go higher up the ladder. But the truth is otherwise. The truth is that the civil servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker sections of the people. And, who better than the ones belonging to those very sections? Why not ask ourselves why 35 years after indpendence, the position of the Scheduled Castes, etc. has not greatly improved? Is it not a legitimate question to ask whether things might have been different, had the District Administrators and the State and Central Bureaucrats been drawn in larger numbers from these classes? Courts are not equipped to answer these questions, but the courts may not interfere with the honest endeavours of the Government to find answers and solutions. We do not mean to say that efficiency in the civil service is unnecessary or that it is a myth. All that we mean to say is that one need not make a fastidious fetish of it. It may be that for certain posts, only the best may be appointed and for certain courses of study only the best may be admitted If so, rules may provide for reservations for appointment to such posts and for admission to such courses. The rules may provide for no appropriate method of selection. It may be that certain posts require a very high degree of skill or efficiency and certain courses of study require a high degree of industry and intellige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian and the compensatory principles cannot be allowed to cloud the issues before us. An intelligible consequence of the fundamental rights of equality before the law, equal protection of the laws, equality of opportunity, etc., guaranteed to all citizens under our Constitution is the right of the weaker sections of the people to special provision for their admission into educational institutions and representation in the services. Appreciating the realities of the situation, and least there by any misapprehension, the Constitution has taken particular care to specially mention this right of the weaker sections of the people in Articles 15(4) and 16(4) of the Constitution. In view of Articles 15(4) and 16(4), the so-called controversy between the meritarian and compensatory principles is not of any great significance, though, of course, we do not suggest efficiency should be sacrificed. The question really is, who are the scheduled castes, scheduled tribes and backward classes, who are entitled to special provision and reservation in regard to admission into educational institutions and representation in the services. So far as Scheduled Castes and Scheduled Tribes are concerned, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the process of production, distribution and exchange, a definition of class which is very near to that of the Marxist conception. The inequality of class depends primarily on inequality of income and to some extent on an equal opportunity for upward mobility. A persen's class, according this definition, is his shared situation in the economic hierarchy. Status, the second of Weber's three dimensions is generally determined by the style of consumption, though not necessarily by the source or amount of income. An impoverished aristocrat is sometimes sought after by the nouveau riche. A desk worker considers himself superior to a manual worker. A professional like a doctor or a lawyer is thought to be of superior status than those belonging to several other walks of life. Status seems to depend on social attributes and styles of life, including dress, speech, occupation, etc., on what R.H. Tawney describes as 'the tedious vulgarities of income and social position.' Similarly, class and status are not contemporaneous with power, though power and class can often be sen to be closely connected. Power is participation in the decision making process but those who wie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e till recently been the monopoly of the superior castes. Occupational skills were practised by the middle castes and in the economic system prevailing till now they could rank in the system next only to the castes constituting the landed and the learned gentry. The lowest in the hierarchy where those who were assigned the meanest tasks, the out-castes who wielded no economic power. The position of a caste in rural society is more often than not mirrored in the economic power wielded by it and vice versa. Social hierarchy and economic position exhibit an undisputable mutuality. The lower the caste, the poorer its members. The poorer the members of a caste lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power wielded by au individual or class in rural society. Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hesitation, say that if poverty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a person's caste. Such we m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42. Articles 330 and 332 provide for reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People and the Legislative Assembles of the State. Articles 331 and 333 provide for representation of the Anglo-Indian Community in the House of the People and the Legislative Assemblies of the States. Article 334 provides that the reservation and special representation are to cease after 30 years. There is no reservation or special representation for socially and educationally backward classes either in the House of the People or in the Legislative Assemblies of the State. 43. Article 335 imposes a constitutional obligation to take into consideration the claims of members of the Scheduled Castes and Scheduled Tribes, in the making of appointments to the services and posts in connection with the affairs of the Union or of the States, consistently with the maintenance of efficiency of administration. Articles 336 and 337 make certain special provisions for the Anglo-Indian Community in certain services and with respect to educational grants for the benefit of that community. Article 341 empowers the President, with respect to any State (after consultation with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislative Assemblies of the States. Again, while under Article 335, there is a constitutional obligation to consider the claims of the members of the Scheduled Castes and Scheduled Tribes in the making of appointments to services and posts in connection with the affairs of the Union and the States and there is a special provision for the Anglo-Indian Community in certain services for a limited period. There is no corresponding provision for the socially and educationally backward classes. But there is a provision under Article 340 of the Constitution for the appointment of a Commission to investigate the conditions of socially and educationally backward classes and to recommend the steps to be taken to ameliorate such conditions. 47. Article 14 of the Constitution, stated in positive language, guarantees to every person equality before the law and equal protection of the laws, Article 15(1) prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 22(2) similarly prohibits the denial of admission into any educational institution maintained by the State or receiving aid out of State fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cationally backward classes of citizens and the scheduled castes and the Scheduled Tribes', so fully described in Article 15(4) : Vide Trilokinath Tiku v. State of Jammu and Kashmir and other cases. However, for the purposes of Article 16(4) it is further necessary that the Backward classes should not be adequate in the services. Again, and quite obviously, 'special provision for advancement' is a wide expression and may include many more things besides 'mere reservation of seats in colleges.' It may be by way of financial assistance, free medical, educational and hostel facilities, scholarships, free transport, concessional or free housing, exemption from requirements insisted upon in the case of other classes and so on. We are not, for the time being, concerned with the mode advancement, other than reservation of seats in colleges, we observe that under Article 16(4), reservation is to be made to benefit those backward classes, who in the opinion of the Government are not adequately represented, in the services. Reservation must, therefore, be aimed at securing adequate representation. It must follow that the extent of reservation must match the inadequacy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roblem of enumerating and classifying these socially and educationally backward communities on the basis that social backwardness depended substantially on the caste to which the community belonged, though it recognised that economic condition may be a contributing factor. According to the court, the Committee virtually equated 'classes' with castes'. The court observed that in dealing with the question as to whether any class of citizens were socially backward or not, it might not be irrelevant to consider the caste of the said citizens but the importance of caste should not be exaggerated. It was observed that caste could not be made the sole or dominant test to determent the social backwardness of group or classes of citizens. It was noted that social backwardness was in the ultimate analysis the result of poverty, to a very large extent. It was also noticed that the occupation of citizens might also contribute to make classes of citizens socially backward. As the Nagam Gowda Committee had adopted the caste test as the predominant test, if not the sole test, without regard to the other factors which were undoubtedly relevant, the court expressed the view the classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other admittedly backward classes shun them and treat them as inferior beings. It was because of the special degradation to which they had been subjected that the Constitution itself had to come forward to make special provision for them. There is no point in attempting to determine the social backwardness of other classes by applying the test of nearness to the conditions of existence of the Scheduled Castes. Such a test would practically nullify the provision for reservation for socially and educationally Backward Classes other than Scheduled Castes and Tribes. Such a test would perpetuate the dominance of the existing upper classes. Such a test would take a substantial majority of the classes who are between the upper classes and the Scheduled Castes and Tribes out of the category of backward classes and put them at a permanent disadvantage. Only the 'enlightened' classes of body will capture all the 'open' posts and seats and the reserved posts and seats will go to the Scheduled Castes and Tribes and those very near the Scheduled Castes and Tribes. The bulk of those behind the 'enlightened' classes and ahead of the near Scheduled Castes and Tribes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously a very difficult task. It will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. 52. The Balaji Court then proceeded to consider the question of educational backwardness. The Nagan Gowda Committee had dealt with the question on the basis of the average of the student population in the last three High school classes of all High Schools in the State in relation to a thousand citizens of that community. The Committee was of the view that all castes whose average was less than the State average should be regarded as Backward communities and those whose average was less than 50 per cent of the State average should be regarded as More Backward. The Court took the view that the adoption of the test of the last three High School classes might be a little high, but even if it was not considered high, it was not right to treat communities which were just below the State average as backward. There can be divergence of views on this question. Where the State average itself is abysmally low, there is no reason why classes of people whose average was slightly above, or very near, or just below the State average, should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h School Classes of all High Schools in the State in relation to a thousand citizens of that community as the basis for assessing relative Backwardness. Balaji thought it was a little high but surely other views are possible. In fact considering the wide spread of elementary education, one would think the basis should be pushed up higher. Having regard to the availability of elementary schools in rural areas, more and more boys of the backward Classes may become literate But it is a long way from ceasing to be educationally backward. As one goes up class by class it as a notorious fact that there are more 'drop-outs' from the boys of the backward classes than from the boy of the forward classes. The adoption of a lower basis to assess educational backwardness may give a wholly false picture. After all, if one is considering the question of admission to professional colleges or of appointment to posts, the basis possibly should be the average number of students of that community who have passed the examination prescribed as the minimum qualification for admission to professional colleges, say in the last three years, and perhaps the average number of persons of that communit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are reluctant to say definitely what would be a proper provision to make. All that the court would finally say was that in the circumstances of the case before them, a reservation of 68 per cent was inconsistent with Article 15(4) of the Constitution. We are not prepared to read Balaji as arbitrarily laying down 50 per cent as the outer limit of reservation. What precisely was decided by Balaji has been summed up by the Court itself at page 471 of the S.C.R. in the following words : We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Article 15(4): and we have also held that the reservation of 68 per cent made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Article 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Article 15(4). 57. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J., speaking for this Court, explained how the Mysore High Court had misunderstood Balaji and observed : While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the test. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Article 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Article 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests. In Rajendran v. State of Madras (1968)IILLJ407SC Ramaswami, J. took care to say, ... if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4).... It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily means that caste was the sole consideration and that person belonging to these castes are also not a class of socially and educationally backward citizens. 59. In State of Andhra Pradesh v. P. Sagar, (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution. 61. In A. Peeriakatuppan v. State of Tamil Nadu [1971]2SCR430 the Court observed : A caste has always been recognised as a class ... there is no gain saying the fact/that there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts of life. 62. In State of Andhra Pradesh v. Balarami [1972]3SCR247 the order of the Government of Andhra Pradesh enumerating the socially and educationally backward classes for the purpose of admission into the medical colleges of the State had been struck down by the High Court on the ground that the Government Order was based on the report of the Backward Classes Commission which had adopted caste as the main basis to determine who were backward classes and this was contrary to the decision of the Court in Balaji. It had also been held by the High Court that the Commission had committed a mistake in adopting the average of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Slate as charge in Article 15(4) to safeguard their interest ... the members of an entire caste or community may in the social economic, and educational scale of values, at a given time be backward and may en that account be treated as backward classes, but that is not because they are members of a caste of community but because they form a class. Therefore, it is clear that there may be instances of an entire caste or a community being socially and educationally backward for being considered to be given protection under Article 15(4).... To conclude, though prima facie the list of Backward Classes which is under attack before us may be considered to be on the basis of caste, a closer examination will clearly show that it is only a description of the group following the particular occupations or professions, exhaustively referred to by the Commission. The Court then proceeded to observe that the question before them was whether the Backward Classes Commission had relevant data and material before it for enumerating the classes of persons to be included in the list of backward classes was a real question and not whether the Commission was scientifically accurate in conclusion. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable situation may arise because even in sectors which are recognised as socially and educationally advanced, there are large pockets of poverty. In this country except for a small percentage of the population, the people are generally poor-some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes he may do it with confidence that they are bound to be poor. Though the two wards, 'Socially' and 'educationally' are used cumulatively or the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced, it is generally also socially advanced because of the reformative effect of education on that class. The words advanced and backward are only relative terms-there being several layers or strata of classes, hovering between advanced and backward , and the difficult task is which class can be recognised out of these several layers as being socially and educationally backward. 64. The State of Jammu Kashmir had declared six classes of citizens as socially and educationally backward. They were (1) persons whose traditional occupation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial specialisation is not possible in the absence of means of communication and technical processes as in the hill and Uttrakhand areas the people are socially backward classes of citizens. Neglected opportunities and people in remote places raise walls of social backwardness of people. Educational backwardness is ascertained with reference to those factors. Where people have traditional apathy for education on account of social and environmental conditions or occupational handicaps, it is an illustration of educational backwardness. The hill and Uttrakhand areas are inaccessible. There is lack of educational institutions and educational aids. People in the hill and Uttrakhand areas illustrate the educationally backward classes of citizens because lack of educational facilities keep them stagnant and they have neither meaning and values nor awareness for education. The Court struck down the reservation for candidates from rural areas on the ground that rural population which constituted 80% of the population of the State could not be a homogeneous class. Some people in the rural areas might be educationally backward, some might be socially backward, there may be few who w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward.... The problem of determining who are socially and educationally backward classes is undoubtedly not simple. Sociological and economic considerations come into play in evolving proper criteria for its determination. This is the function of the State. The Court's jurisdiction is to decide whether the tests applied are valid.... If the classification is based solely on caste of the citizen, it may not be logical. Social backwardness is the result of poverty to a very large extent. Caste and Poverty are both relevant for determining the backwardness. But neither caste alone nor poverty alone will be the determining tests.... Therefore, socially and educationally backward classes of citizens in Article 15(4) cannot be equated with castes. In R. Chitralekha v. State of Mysore this Court said that the classification of backward classes based on economic conditions and occupations does not offend Article 15(4). 68. State of Kerala v. N.M. Thomas (1976)ILLJ376SC is a very important case decided by a bench of seven judges consisting of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent of the total number of posts. The Scheduled Castes and Scheduled Tribes constitute 10 per cent of the State's population. Their share in the gazetted so vice of the State is said to be 2 per cent 184 out of 8,700. Their share in the non-gazetted appointments is only 7 per cent namely 11,437 out of 1,62,784. It is, therefore, correct that Rule 13AA and the orders are meant to implement not only the direction under Article 335, but also the Directive Principle under Article 46. 69. One other important statement in Ray, CJ. 's judgment is worth noticing. He said, Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste . He referred o Bhaiyalal v. Harikishan Singh were it had been held that an enquiry was not permissible into the question whether a particular caste was a Scheduled Caste or not in view of the provision of Article 341. 70. Mathew, J. who agreed with the conclusions of Ray, CJ., observed that resort to some sort of proportionate equality was necessary in many spheres to achieve justice. Equality of opportunity was not simply a matter of legal equalily, it depended not merely on the absence of disability but on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose. We must straight away demur. There is no reason whatever to narrow the concept of equality in Article 16(1) and refuse to read into it broader concepts of social justice and equality. In fact, it is necessary to read Article 16(1) so as not to come into any conflict with Arts, 46 and 335. A constitutional document must be read as to synthesise its provisions and avoid disharmony. To say that equality also means that unequals cannot be treated equally is merely to say what is self-evident and common place. Article 14 implies it and we do not see why it is not implied in Article 16(1) also. True, on a first glance, Article 16(4) appears to save the power of the State to make provision for the reservation of appointments and posts in favour of any backward class of citizens, but a second look shows that it really recognises a pre-existing power and expresses the recognition in an emphatic way lest there should be any doubt caste upon that power. Such a device is not unknown to legislatures and Constitution making bodies. Article 16(4) is more in the nature of a rule of interpretation to guide the construction of Article 16(1). The possibility of interpreting Article 16(1) so as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, will alone tell the whole truth and a constant process of objective re-evaluation of a progress registered by the 'underdog' categories is essential lest a once deserving 'reservation' should be degraded into reverse discrimination'. One cannot quarrel with the statement that social science research and not judicial impressionism should form the basis of examination, by Courts, of the sensitive question of reservation for backward classes. Earlier we mentioned how the assumption that efficiency will be impaired if reservation exceeds 50 per cent, if reservation is extended to promotional posts or if the carry forward rule is adopted, is not based on any scientific data. 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 fortunate among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), but was to be read as part and parcel of Article 16(1) and (2). Dealing with the question of the so-called excessive reservation, he emphatically observed, This means that the reservation should be within the permissible limits and should not be a cloak to till all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time Clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since Clause (4) is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50 per cent. As I read the authorities, this, is, however, a rule of caution and does not exhaust all categories. Suppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unfit, do not require a high degree of skill as in the case of selection posts. (1968)IILLJ407SC . It is obvious that as between selection and non-selection posts the role of merit is functionally more relevant in the former than in the latter. And if in Rangachari reservation has been held valid in the case of selection posts, such reservation in non-selection posts is an afortiori case. If, in selecting top officers you may reserve posts for SC/ST with lesser merit, how can you rationally argue that for the posts of peons or lower division clerks reservation will spell calamity? The part that efficiency plays is far more in the case of higher posts than in the appointments of the lower posts. On this approach Annexure K. is beyond reproach. Trite arguments about efficiency and inefficiency are a trifle phoney because, after all, at the higher levels the harijans girijan appointees are a microscopic percentage and even in the case of Classes III and II posts they are negligible. The preponderant majority coming from unreserved communities are presumably efficient and the dilution of efficiency caused by the minimal induction of a small percentage of 'reserved' c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fortunate, even when the competition is itself otherwise equitable. John Rawls in 'A Theory of Justice' demands the priority of equality in a distributive sense and the setting up of the Social System so that no one gains or loses from his arbitrary place in the distribution of natural assets or his own initial position in society without giving or receiving compensatory advantages in return. His basic principle of social justice is: All social primary goods-liberty and opportunity, income and wealth, and the bases of self-respect are to be distributed equally unless an unequal distribution of any or all these goods is to the advantage of the least favoured. One of the essential elements of his conception of social justice is what he calls the principle of redress : This is the principle that undeserved inequalities call for redress, and since inequalities of birth and natural endowment are underserved, these inequalities are somehow to be compensated for . Society must, therefore, treat more favourably those with fewer native assets and those born into less favourable social positions. The statement that equality of opportunity must yield equality of results was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons belonging to upper caste or occupational groups going about their daily work bare-lacked it is not an uncommon right to see persons belonging to lower caste or occupational groups so going about, Work habits also given an indication. Women belonging to higher social groups would not generally care to serve in other people's homes or fields. Again children of lower social groups take to domestic and field work quite early in their lives. There are certainly good economic reasons for all these factors. As we said economic situation and social situation often reflect each others. We mentioned earlier that even the Gods that they worship give occasional clues. While the Hindu Gods proper, Rama, Krishna, Siva etc. are worshipped by all Hindus generally there are several local Gods and Goddesses in each village worshipped only by the inferior castes. In Andhra Pradesh, for example, in every village the so-called inferior castes worship the goddesses Sunkalamma, Gangamma, Polimeramma (the Goddess guarding the village boundary), Yellamma (another Goddess guarding the village limits). They celebrate Hindu festivals like Dasara, Deepawali etc. but also other festivals in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thas (who traditionally carry on the occupation of Fisher-folk), etc. as backward classes by the mere mention of their castes. True, a few members of those caste or social groups may have progressed far enough and forged ahead so as to compare favourably with the leading forward classes economically, socially and educationally. In such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it. But one is entitled to ask what is to happen to the poorer sections of the forward classes'? The State will have to-and it is the duty of the State so to do-to discover other means of assisting them, means other than reservations under Articles 15(4) and 16(4). All this only emphasises that in the ultimate analysis, attainment of economic equality is the final and the only solution to the besetting problems. There is also one danger in adopting individual poverty as the criterion to identify a member of the backward classes, which needs to be pointed out. How is one to identify the individuals who are economically backward and, therefore, to be classified as socially and educationally backward? Are all those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, but the question is as to the identification of the socially and educationally backward classes of citizens for whose advancement the State may make special provisions under Article 15(4) like those for the Scheduled Castes and Scheduled Tribes. Conceptually, the making of special provisions for the advancement of backward classes of citizens under Article 15(4) and the system of reservation of appointments or posts as envisaged by Article 16(4) as guaranteed in the Constitution, is a national commitment and a historical need to eradicate age-old social disparities in our country. But unfortunately the policy of reservation hitherto formulated by the Government for the upliftment of such socially and educationally backward classes of citizens is caste-oriented while the policy should be based on economic criteria. Then alone the element of caste in making such special provisions or reservations under Articles 15(4) and 16(4) can be removed. At present only the privileged groups within the backward classes i.e. the forwards among the backward classes reap all the benefits of such reservation with the result that the lowest of the low are stricken with poverty and therefore social ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined with reference to the percentage of that class in the population and the total strength of the service as a whole. The representation does not have to exactly correspond to the percentage of that class in the population; it just to be adequate. Moreover, in the case of services the extent of representation has to be considered by taking into account the number of members of that class in the service, whether they are holding reserved or unreserved posts. I cannot overemphasize the need for a rational examination of the whole question of reservation in the light of the observation made by us. The State should give due importance and effect to the dual constitutional mandates of maintenance of efficiency and the equality of opportunity for all persons. The nature and extent of reservations must be rational and reasonable. It may be, and often is difficult for the Court to draw the line in advance which the State ought not to cross, but it is never difficult for the Court to know that an invasion across the border, however ill-defined, has taken place. The Courts have neither the expertise nor the sociological knowledge to define or lay down the criteria for determining what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but surely tear apart the fabric of society. It is primarily the duty and function of the State to inject moderation into the decisions taken under Articles 15(4) and 16(4), because justice lives in the hearts of men and growing sense of injustice and reverse discrimination, fuelled by unwise State action, will destroy, not advance, social justice. If the State contravenes the constitutional mandates of Article 16(1) and Article 335, this Court will of course, have to perform its duty. 87. The extent of reservation under Article 15(4) and Article 16(4) must necessarily vary from State to State and from region to region within a State, depending upon the conditions prevailing in a particular state or region, of the Backward Classes. I do feel that the Central Government should consider the feasibility of appointing a permanent National Commission for Backward Classes which must constantly carry out sociological and economic study from State to State and from region to region within a State. The framers of the Constitution by enacting Article 340 clearly envisaged the setting up of such a high-powered National Commission for Backward classes at the center. These problems can never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a generosity and farsightedness that are rare among nations. The operation of such a preferential principle involves formidable burdens of policy-making and administration in a developing nation. It also places upon the judiciary tasks of great complexity and delicacy. The courts must guard against abuses of the preferential principle while at the same time insuring that the government has sufficient leeway to devise effective use of the broad powers which the Constitution places at its disposal . These are the wise words of Marc Galanter, a member of the faculty of Social Sciences, University of Chicago, who has made a special study of the problem of the Indian backward classes. The very fact that the governmental agencies and 'above all the courts have been obliged to examine the constitutional principles in the light of the egalitarian pressures has in its turn opened up hardly foreseen complexities that had lain buried in the doctrine of equality. The society which cherishes the ideal of equality has to define the meaning and content of the concept of equality and the choices open to it to bring about an egalitarian society would always be political. But the courts lave bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ationality, excess of rationality often tends to dehumanise human relations'. The courts are also reminded that for those who are suffering from deprivation of inalienable rights, gradualism can never be a sufficient remedy because as Ralph Buoche observed 'inalienable rights cannot be enjoyed posthmously'. Ours is a 'struggle for status, a struggle to take democracy off parchment and give it life'. 'Social injustice always balances its books with red ink'. Neither the caprice of personal taste nor the protection of vested interests can stand as reasons for restricting opportunities of any appropriately qualified person. These are the considerations which sometimes may be conflicting that should weigh with the courts dealing with cases arising out of the doctrine of equality. It should, however, be remembered that the courts by themselves are not in a position to bring the concept of equality into fruitful action. They should be supported by the will of the people, of the Government and of the legislators. There should be an emergence of united action on the part of all segments of human society. This is not all. Mere will to bring about equality under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the above statement: Suppose that in a certain society great prestige is attached to membership of a warrior class, the duties of which require great physical strength. This class has in the past been recruited from certain wealthy families only ; but egalitarian reforms achieve a change in the rules, by which warriors are recruited from all sections of the society, on the results of a suitable competition. The effect of this, however, is that the wealthy families still provide virtually all the warriors, because the rest of the populage is so under-nourished by reason of poverty that their physical strength is inferior to that of the wealthy and well-no arished. The reformers protest that equality of opportunity has not really been achieved ; the wealthy reply that in fact it has, and that the poor now have the opportunity of becoming warriors-it is just bad luck that their characteristics are such that they do not pass the test. We are not, 'they might say, 'excluding anyone for being poor, we exclude people for being weak, and it is unfortunate that those who are poor are also weak. This answer would seem to most people feeble and even cynical. This is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force till 1956 i.e. the reorganisation of States which brought together five integrating units the former State of Mysore (including Bellary District), Coorg, four districts of Bombay, certain portions of the State of Hyderabad and the district of South Kanara and the Kollegal Taluk which formerly formed part of the State of Madras. There were different lists of backward communities in the five integrating units and they were allowed to continue for sometime even after the reorganisation of States. In order to bring about uniformity the State Government issued a notification containing the list of backward classes for the purpose of Article 15(4) of the Constitution at the beginning of 1959. The validity of that notification and of another notification issued thereafter on the same topic which according to the State Government had treated all persons except Brahmins, Banias and Kayasthas as backward communities was challenged before the High Court of Mysore in Rama Krishna Singh v. State of Maysore. A.I.R. 1960 Mys. 338 The two notifications were struck down by the High Court. The High Court held that inasmuch as the impugned notifications contained a list of backward classes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled, the same shall be filled by candidates of other backward classes was unconstitutional. It also gave some directions regarding the manner in which the calculation of the quota of reservation should be made. Thereafter the Final Report was submitted by the Nagan Gowda Committee on May 16, 1961' After taking into consideration the recommendations made in the said Report, the State Government issued an order for the purpose of Article 15(4) of the Constitution on July 10, 1961. By that order, the State Government specified 81 classes of people as backward classes and 135 classes of people as more backward classes and reserved 30% of seats in the professional and technical institutions for backward and more backward classes. 15% and 3% of the seats were reserved for Scheduled Castes and Scheduled Tribes respectively and the remaining 52% of the seats were allowed to be filled up on merit. The above order was superseded by a fresh Government order made on July 31, 1962 for the purpose of Article 15(4). By this new order, 28% of the seats were reserved for the backward classes, 22% for the more backward classes, 15 per cent for the Scheduled Castes and 3 per cent for the Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relevant, its importance should not be exaggerated. if the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian Society which do not recognise castes in the 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, but that would hardly justify the exclusion of these groups in to from the operation of Article 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming 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 backwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is doubtful if the test of the average of student population in the last three High School classes is appropriate in determining the educational backwardness. Having regard to the fact that the test is intended to determine who are educationally backward classes, it may not be necessary or proper to put the test as high as has been done by the Committee. But even assuming that the test applied is rational and permissible under Article 15(4), the question still remains as to whether it would be legitimate to treat castes or communities which are just below the State average as educationally backward classes. If the State average is 6.9 per thousand, a community which satisfies the said test or is just below the said test cannot be regarded as backward. It is only communities which are well below the State average that can properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population works below 50 per cent of the State average are obviously educationally backward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose averag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent ; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. In this particular case, it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68 per cent recommended by the Nagan Gowada Committee would not be in the larger interests of the State. What happened between July 10, 1961 and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Article 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements ; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of the High Court appear to be in conflict with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made by the High Court may lead to some confusion in the mind of the authority concerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Article 15(4) of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has not excluded caste front ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 101. In 1972, the State Government appointed the Karnataka Backward Classes Commission under the chairmanship of Shri L. G. Havanur which after an elaborate enquiry submitted its Report on November 19, 1975 in four massive volumes, the first volume containing two parts. It is stated that the commission counted a socio-economic survey of 378 villages and town/city blocks in their entirety covering more than 3,55,000 individuals belonging to 171 castes and communities with the help of more than 425 investigators and supervisors. About 365 witnesses were examined by the Commission. The Report of the Commission is full of tabular statements and it refer to a number of writings by sociologists, demographers, jurist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt reserved for Scheduled Castes and Scheduled Tribes together amounted to 50 per cent of the total seats or posts, as the case may be. The Commission further recommended that if seats/posts remained unfilled in the quota allotted to backward tribes, they should be made over to backward communities and backward castes. Similarly if seats/posts remain unfilled in the quota allotted to backward castes, they should be made over to backward communities and backward tribes. If, however, seats/posts remain unfilled in the quota allotted to any of those three categories, they should be made over to Scheduled Castes and Scheduled Tribes. In the event of seats/posts remaining unfilled by any of these categories, they should be transferred to the general pool. 103. After considering the Report of the Backward Classes Commission, the State Government issued an order dated February 22, 1977 the material part of which read as follows: 1. After careful consideration of the various recommendations made by the Commission, Government are pleased to direct as follows : I. The Backward Communities, Backward Castes and Backward Tribes as mentioned in the list appended to this Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977 by increasing the reservation for 'Special Group' from 5 per cent to 15 per cent both for purposes of Article 15(4) and Article 16(4) of the Constitution. Thus as on date, the total reservation for purposes of Article 15(4) in 68 per cent and for purposes of Article 16(4) is 66 per cent. There are only 32 per cent seats in professional and technical colleges and 34 per cent posts in Government services which can be filled up on the basis of merits. 105. In these writ petitions filed under Article 32 of the Constitution the above Government orders dated February 22, 1977 as modified by the Government orders dated May 1, 1979 and June 27, 1979 are challenged. 106. It should be stated here that the Government orders dated February 22, 1977 and another notification dated March 4, 1977 issued for purposes of Article 16(4) had also been challenged in a number of writ petitions filed under Article 226 of the Constitution before the High Court of Karnataka in S.C. Somashekarappa and Ors. v. State of Karnataka and Ors. Writ Petition No. 4371 of 1977 and connected writ petitions disposed of on April 9, 1979 The High Court allowed the writ petitions in part. It quashed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a charioteer or a charioteer's son. I may be anybody. What does it matter ? Being born in a (high) caste is God's will but valour belongs to me.' (See Veni Samhara by Bhatta Narayana). 108. There were many sub-castes of different degrees in the hierarchy. Some were even treated as untouchables. People of low castes became socially backward and they in their turn neglected studies. Thus they became socially and educationally backward. This part of the Indian history is dismal indeed. A page of history is worth a volume of logic. 109. We are aware of the meanings of the words caste, race, or tribe or religious minorities in India. A caste is an association of families which practice the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste. There are subgroups amongst the castes which sometimes inter marry and sometimes do not. A caste is based on various factors, sometimes it may be a class, a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family. Certain ideas of ceremonial purity are p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those terms : The conception and practice of caste embodied the aristocratic ideal and was obviously opposed to democratic conceptions. It had its strong sense of noblesse oblige, provided people kept to their hereditary stations and did not challenge the established order. India's success and achievements were on the whole confined to the upper classes ; those lower down in the scale had very few chances and their opportunities were strictly limited. These upper classes were not small limited groups but large in numbers and there was a diffusion of power, authority and influence. Hence they carried on successfully for a very long period. But the ultimate weakness and failing of the caste system and the Indian social structure were that they degraded a mass of human beings and gave them no opportunities to get out of that condition- educationally, culturally, or economically. That degradation brought deterioration, all along the line including in its scope even the upper classes. It led to the petrifaction which became a dominant feature of India's economy and life. The contrasts between this social structure and those existing elsewhere in the past were not great, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Draft Constitution required the Union to appoint members of the Anglo-Indian community in certain services as stated therein and Article 298 of the Draft Constitution provided for certain educational concessions to the Anglo-Indian community over a certain specified period. Article 299 of the Draft Constitution required the President to appoint a Special Officer for minorities for the Union and the Governor to appoint a Special Officer for minorities for a State. Administration of Scheduled areas and welfare of certain Scheduled Tribes were entrusted to the President by Article 300 of the Draft Constitution and it made provision for appointment of a commission for that purpose. Article 301 of the Draft Constitution authorised the President to appoint a commission to investigate the conditions of socially and educationally backward classes. It read as follows: 301. (1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheduled Castes and certain Scheduled Tribes in the Lok Sabha and Article 332 provided for reservation for them in the Legislative Assemblies of States. Article 331 and Article 333 dealt with domination of representatives of the Anglo-Indian community respectively to the Lok Sabha and the Legislative Assemblies of States. Article 334 fixed the period during which reservations and nominations could be made under the above said Articles. Article 335 required the Union and the States to recognise the claims of members of the Scheduled Castes and the Scheduled Tribes consistently with the maintenance of efficiency of administration in the making of appointments by the Union or the States, as the case may be. Article 336 contained special provision for the Anglo-Indian community in certain services during the first two years after the commencement of the Constitution and Article 337 contained special provision with respect to educational grants for the benefit of the Anglo-Indian community during a certain period after the commencement of the Constitution. Article 338 required the President to appoint a Special Officer for Scheduled Castes and Scheduled Tribes. Article 338(3) stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation issued by the President under Article 342(1). This is clear from the definitions of 'Scheduled Castes' and 'Scheduled Tribes' in Article 366(24) and Article 366(25). The notifications issued under Article 341 and Article 342 can be modified only by a law made by the Parliament (Vide Article 341(2) and Article 342(2). It is thus seen that Part XVI of the Constitution deals with certain concessions extended to certain castes, tribes and races which are Scheduled Castes and Scheduled Tribes and to the Anglo-Indian community. In the above context if Article 338(3) and Article 340 are construed, the expression 'backward classes' can only refer to certain castes, races, tribes or communities or parts thereof other than Scheduled Castes, Scheduled Tribes and the Anglo-Indian community, which are backward. Thus view also gains support from the resolution regarding the aims and objects of the Constitution moved by Pandit Jawaharlal Nehru in the Constituent Assembly on December 13, 1946. He said : I beg to move : (1) This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, difficult to hold that persons or groups of persons who are backward merely on account of poverty which is traceable to economic reasons can also be considered as backward classes for purposes of Article 16(4) and Part XVI of the Constitution. 116. The word 'backward' was not there before the words 'class of citizens' in Article 10(3) of the original draft of the Constitution (the present Article 16(4)). The Drafting Committee presided over by Dr. B.R. Ambedkar deliberately introduced it. Dr. Ambedkar gave the reason for introducing that term as follows : 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, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9007). This statement leads to a reasonable inference that this was the meaning which the Constituent Assembly assigned to classes' at any rate so far as Hindus were concerned, 118. In Balaji's case (supra) and in Chitralekha's case (supra) this Court exhibited a lot of hesitation in equating the expression 'dais' with 'caste' for purposes of Articles 15(4) and Article 16(4) of the Constitution. It observed, as stated earlier, that while caste might be a relevant circumstance to determine a backward class, it could not, however, be dominant test. One of the reasons given for not accepting caste insofar as Hindu community in which caste system was prevalent was concerned as a dominant test for determining a backward class was that as there were communities without castes, nothing prevented the makers of the Constitution to use the expression 'backward classes or castes'. The juxtaposition of the expression 'backward classes' and 'Scheduled Castes' in Article 15 of the Constitution, according to the above two decisions, led to a reasonable inference that expression 'classes' was not synonymous with 'caste'. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra) reservation of seats was done solely on the basis of caste or community. There appeared to be no determination of the fact whether members belonging to such castes or communities were in fact socially and educationally backward. The court struck down the reservation as being outside Article 15(4) of the Constitution. The Court, however, observed at page 600 thus: In the context in which it occurs 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 the determination of a class a test solely based upon the caste or community cannot also be accepted. By Clause (1), Article 15 prohibits the State from discriminating against any citizens on grounds only of religion, race, caste, sex, place of birth or any of them. By Clause (3) of Article 15 the State is, notwithstanding the provision contained in Clause (1), permitted to make special provision for women an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho 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. (emphasis added) 121. In Peeriakaruppan's case (supra) Hegde. J. observed at page 443 thus : A caste has always been recognised as a class. In construing the expression classes of His Majesty's subjects found in Section 153-A of the Indian Penal Code, Wassoodew, J. observed in Naryan Vasudev v. Emperor A.I.R. 1943 Bom. 379. In my opinion' the expression 'classes of His Majesty's subjects' in Section 153-A of the Code is used in restrictive sense as denoting a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race or religion, and that the term 'class' within that section carries with it the idea of numerical streng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a de novo comprehensive examination of the question. It must be remembered that the Government's decision in this regard is open to judicial review. 126. In Balaram's case (supra) the State was the appellant. It had come up in appeal against the judgment of the High Court of Andhra Pradesh which had struck down its order making reservation of seats of seats under Article 15(4). This Court allowed the appeal upholding the Government order, Vaidialingam, J. in the course of his judgment observed at page 280 thus: 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 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 date, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or community is a relevant factor in determining the social and educational backwardness, it cannot be said that all members of a caste need be treated as backward and entitled to reservation under Article 15(4) or Article 16(4). Caste-cum-means test would be a rational test in identifying persons who are entitled to the benefit of those provisions. This principle has received acceptance at the hands of this Court in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. [1977]1SCR194 In that case a Commission appointed by the Government of the State of Kerala to enquire into the social and economic conditions of the people of that State and to recommend as to what sections of the people should be extended the benefits under Article 15(4) of the Constitution found that only the rich amongst certain castes or communities were enjoying the benefit of reservations made earlier. It, therefore, recommended adoption of a means-cum-caste/community test for determining the sections of the people who should be given the benefit under the relevant constitutional provisions. The State Government accordingly stipulated that applicants who were members of certain castes or communities an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are socially and educationally backward. That is why our Constitution provided for special consideration socially and educationally backward classes of citizens as also Scheduled Castes and Tribes. It is only by directing the society and the State to offer them all facilities for social and educational uplift that the problem is solved. It is in that context that the Commission in the present case found that income of the classes of citizens mentioned in Appendix VIII was a relevant factor in determining their social and educational backwardness. 130. When once the relevance of caste is not adhered to several difficulties might arise as can be seen from the decision in the State of Uttar Pradesh v. Pradip Tandon and Ors. [1975]2SCR761 . In that case the Court had to examine the validity of a Government order which had made reservation of seats under Article 15(4) in favour of two classes of students-(1) those who came from rural areas and (2) those who came from hill areas and Uttrakhand. The High Court of Allahabad upheld the said reservations in Subhash Chandra v. The State of U.P. and Ors. AIR1973All295 but struck them down in a later case in Dilip Kumar v. The Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his parents and guardians are still living there and earn their livelihood there. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth, as this would offend Article 13. 132. But it upheld the reservations made in favour of the hill and akhand areas with these observations at page 767 : The hill and Uttrakhand areas in Uttar Pradesh are instance of socially and educationally backward classes for these reasons. Backwardness is judged by economic basis that each region has its own measurable possibilities for the maintenance of human numbers, standards of living and fixed property. From an economic point of view the classes of citizens are backward when they do not make effective use of resources. When large areas of land maintain a sparse, disorderly and illiterate population whose property is small and negligible the element of social backwardness is observed. When effective territorial specialisation is not possible in the absence of means of communication and technical processes as in the hill and Uttrakhand areas the people are socially backward classes of citizens. Neglected opportunities an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons who do not belong to socially oppressed castes and minorities but who other wise belong to weaker section, due to poverty, place of habitation, want of equal opportunity etc. that question arises whether such reservation can be made in their favour under any other provision of the Constitution such as Article 14, Article 15(1), Article 16(1) or Article 46. The decision in State of Kerala and Anr. v. N.M. Thomas and Ors. (1976)ILLJ376SC which was rendered by a Bench of seven learned Judges of this Court attempted to deal with the above question. The facts of that case were these : Rule 13(a) of the Kerala State Subordinate Service Rules, 1958 provided that no person would be eligible for appointment to any service or any post unless he possessed such special qualifications and had passed such special tests as might be prescribed in that behalf in that Special Rules. For promotion of a lower division clerk to the next higher post of upper division clerk, the Government prescribed certain departmental tests. By Rule 13A which was introduced later on temporary exemption was given for a period of two years. That Rule also provided that an employee who did not pass the unified dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pension and gratuity. Article 16(1) permits classification on the basis of object and purpose of law or State action except classification involving discrimination prohibited by Article 16(2). Equal protection of laws necessarily involves classification. The validity of the classification must be adjudged with reference to the purpose of law. The classification in the present case is justified because the purpose of classification is to enable members of Scheduled Castes and Tribes to find representation by promotion to a limited extent. From the point of view of time a differential treatment is given to members of Scheduled Castes and Tribes for the purpose of giving them equality consistent with efficiency. 135. Khanna, J. who upheld the judgment of the High Court was of the view that since the impugned Rule did not get the protection of Article 16(4) which was the only provision under which preferential treatment could be given to members belonging to backward classes, Scheduled Castes and Scheduled Tribes, the Rule could not be upheld on the basis of classification under Article 14 and Article 16(1) of the Constitution. The learned Judge observed at pages 939-940 thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible to make any reservation of appointments or posts in favour of any backward class of citizens. 136. Khanna, J. proceeded to observe at page 944 thus : The matter can also be locked at from another angle. If it was permissible to accord favoured treatment to members of backward classes under Clause (1) of Article 16, there would have been no necessity of inserting Clause (4) in Article 16. Clause (4) in Article 16 in such an event would have to be treated as wholly superfluous and redundant. The normal rule of interpretation is that no provision of the Constitution is to be treated as redundant and superfluous. The Court would, therefore, be reluctant to accept a view which would have the effect of rendering Clause (4) of Article 16 redundant and superfluous. 137. Mathew, J. more or less agreed with Ray, C.J. He said at pages 954-955 thus : It is said that Article 16(4) specifically provides for reservation of posts in favour of backward classes which according to the decision of this Court would include the power of the State to make reservation at the stage of promotion also and therefore Article 16(1) cannot include within its compass the power to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry consequences of the positive mandate of Article 16(1) if they come within the only exception contained in Article 16(4) of the Constitution. I respectfully concur with my learned brother Khanna and Gupta that it would be dangerous to extend the limits of protection against the operation of the principle of equality of opportunity in this field beyond its express constitutional authorisation by Article 16(4). 139. Beg, J. (as he then was) proceeded to hold at page 961 thus : Members of a backward class could be said to be discriminated against if severer tests were prescribed for them. But, this is not the position in the case before us. All promotees, belonging to any class, caste, or creed, are equally subjected to efficiency tests of the same type and standard. The impugned rules do not dispense with these tests for any class or group. Indeed, such tests could not be dispensed with for employees from Scheduled Castes, even as a backward class, keeping in view the provisions of Article 335 of the Constitution. All that happens here is that the backward class of employees is given a longer period of time to pass the efficiency tests and prove their merits as determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e profile of Article 46 is more or less the same. So, we may readily hold that casteism cannot come back by the backdoor and, except in exceptionally rare cases, no class other than Harijans can jump the gauntlet of equal opportunity' guarantee. Their only hope is in Article 16(4). (Emphasis supplied). 141. Gupta, J. agreed generally with Khanna, J. and upheld the judgment of the High Court. Gupta, J. after referring to Article 335 observed at page 986 thus: This Article does not create any right in the members of the Scheduled Castes and the Scheduled Tribes which they might claim in the matter of appointments to services and posts; one has to look elsewhere, Article 16(4) for instance, to find out the claims conceded to them. Article 335 says that such claims shall be considered consistently with administrative efficiency, thus is a provision which does not enlarge but qualify such claims as they may have as members of the Scheduled Castes or Scheduled Tribes. Article 335, it seems clear, cannot furnish any clue to the understanding of Article 16(1). 142. Fazal Ali, J. also upheld the impugned Rule under Article 16(1). The learned Judge said at page 1001 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at detail. The other method to achieve the end may be to make suitable reservation for the backward classes in such a way so that the inadequate representation of the backward classes in the services is made adequate. This form of classification which is referred to as reservation, is, in my opinion, clearly covered by Article 16(4) of the Constitution which is completely exhaustive on this point. That is to say Clause (4) of Article 16 is not an exception to Article 14 in the sense that whatever classification can be made can be done only through Clause (4) of Article 16. Clause (4) of Article 16, however, is an explanation containing an exhaustive and exclusive provision regarding reservation which is one of the forms of classification. Thus clause {4) of Article 16 deals exclusively with reservation and not other forms of classification which can be made under Article 16(1) itself. Since Clause (4) is a special provision regarding reservation, it can safely be held that it overrides Article 16(1) to that extent and no reservation can be made under Article 16(1). (Emphasis added) 144. The result is that at least according to four learned Judges- Khanna; Beg, Gupta and F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imate view to take would be that the classes of citizens whose average is well or substantially below the State average can be treated as educationally backward. 146. This was further explained by Shah, J. (as he then was) in Sagar's case (supra) when he observed that the criterion for determining the backwardness must not be based solely on religion, race, caste, sex or place of birth and the backwardness being social and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffered. A Constitution Bench of this Court reiterated the above principle in Janki Prasad Parimoo and Ors. etc. etc. v. State of Jammu Kashmir and Ors. in which it was observed at page 252 thus: That accounts for the raison d'etre of the principle explained in Balaji's case which pointed out that backward classes for whose improvement special provision was contemplated by Article 15(4) must be comparable to Scheduled Castes and Scheduled Tribes who are standing examples of backwardness socially and educationally. 147. This view is in conformity with the intention underlying Clause (6) of the resolution regarding the aims and object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n along with the really backward classes for nearly three decades. It is time that more attention is given to those castes, and groups communities who have been at the lowest level suffering from all the disadvantages and disabilities (except perhaps untouchability) to which many of the Scheduled Castes and Scheduled Tribes have been exposed but without the same or similar advantages that flow from being included in the list of the Scheduled Castes and the Scheduled Tribes. 148. Since economic condition is also a relevant criterion, it would be appropriate to incorporate a 'means test' as one of the tests in determining the backwardness as was done by the Kerala Government in Jayasree's case (supra). These two tests namely, that the conditions of caste or group or community should be more or less similar to the conditions in which the Scheduled Castes or Scheduled Tribes are situated and that the income of the family to which the candidate belongs does not exceed the specified limit would serve as useful criteria in determining beneficiaries of any reservation to be made under Article 15(4). For the purpose of Article 16(4) however, it should also be shown that the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 15(4) and Article 16(4) should not exceed 50 per cent of the total number of seats or posts, as the case may be. The Court held that reservation of 68 per cent of seats under Article 15(4) which was a special provision was invalid. The Court further held that 'speaking generally and in a broad way a special provision should be less than 50 per cent, how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case'. This statement was understood by a Constitution Bench of this Court in T. Devadasan v. The Union of India and Anr. (1965)IILLJ560SC as laying down the rule that reservation under Article 15(4) or Article 16(4) could not be more than 50 per cent of seats or posts. In that case Mudholkar, J. speaking for the majority said at page 698 : Even if the Government had provided for the reservation of posts for Scheduled Castes and Tribes a cent per cent reservation of vacancies to be filled in a particular year or reservation of vacancies in excess of 50 per cent would, according to the decision in Balaji's case, not be constitutional. 151. But in the State of Kerala and Anr. v. N.M. Thomas and Ors. (supra) the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule. 153. After carefully going through all the seven opinions in the above case, it is difficult to held that the settled view of this Court that the reservation under Article 15(4) or Article 16(4) could not be more than 50 per cent has been unsettled by a majority on the Bench which decided this case. I do not propose to pursue this point further in this case because if reservation is made only in favour of those backward castes or classes which are comparable to the Scheduled Castes and Scheduled Tribes, it may not exceed 50 per cent (including 18 per cent reserved for the Scheduled Castes and Scheduled Tribes and 15 per cent reserved for 'special group') in view of the total population of such backward classes in the State of Karnataka. The Havanur Commission has taken the number of students passing at S.S.L.C. examination in the year 1972 as the basis for determining the backwardness. The average passes per thousand of the total population of the State of Karnataka was 1.69 in 1972. The average in the case of the Scheduled Castes was 0.56 and in the case of Scheduled Tribes was 0.51. Even if we take all the castes, tribes and communities whose average is below 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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